The Project Gutenberg eBook, Domesday Book and Beyond, by Frederic William Maitland

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DOMESDAY BOOK AND BEYOND

THREE ESSAYS
IN THE
EARLY HISTORY OF ENGLAND.

CAMBRIDGE UNIVERSITY PRESS WAREHOUSE,
C. F. CLAY, Manager.
London: FETTER LANE, E.C.
Glasgow: 50, WELLINGTON STREET.

ALSO

London: STEVENS AND SONS, Ltd., 119 and 120, CHANCERY LANE.
Leipzig: P. A. BROCKHAUS.
Bombay and Calcutta: MACMILLAN & CO. Ltd.

[All rights reserved.]

DOMESDAY BOOK AND BEYOND

THREE ESSAYS
IN THE
EARLY HISTORY OF ENGLAND

BY

FREDERIC WILLIAM MAITLAND, LL.D.

FORMERLY DOWNING PROFESSOR OF THE LAWS OF ENGLAND
IN THE UNIVERSITY OF CAMBRIDGE,
OF LINCOLN’S INN, BARRISTER-AT-LAW.

CAMBRIDGE:
AT THE UNIVERSITY PRESS
1907

First Edition 1897.
Reprinted 1907.

PREFACE.

The greater part of what is in this book was written in order that it might be included in the History of English Law before the Time of Edward I. which was published by Sir Frederick Pollock and me in the year 1895. Divers reasons dictated a change of plan. Of one only need I speak. I knew that Mr Round was on the eve of giving to the world his Feudal England, and that thereby he would teach me and others many new lessons about the scheme and meaning of Domesday Book. That I was well advised in waiting will be evident to everyone who has studied his work. In its light I have suppressed, corrected, added much. The delay has also enabled me to profit by Dr Meitzen’s Siedelung und Agrarwesen der Germanen[1], a book which will assuredly leave a deep mark upon all our theories of old English history.

The title under which I here collect my three Essays is chosen for the purpose of indicating that I have followed that retrogressive method ‘from the known to the unknown,’ of which Mr Seebohm is the apostle. Domesday Book appears to me, not indeed as the known, but as the knowable. The Beyond is still very dark: but the way to it lies through the Norman record. A result is given to us: the problem is to find cause and process. That in some sort I have been endeavouring to answer Mr Seebohm, I can not conceal from myself or from others. A hearty admiration of his English Village Community is one main source of this book. That the task of disputing his conclusions might have fallen to stronger hands than mine I well know. I had hoped that by this time Prof. Vinogradoff’s Villainage in England would have had a sequel. When that sequel comes (and may it come soon) my provisional answer can be forgotten. One who by a few strokes of his pen has deprived the English nation of its land, its folk-land, owes us some reparation. I have been trying to show how we can best bear the loss, and abandon as little as may be of what we learnt from Dr Konrad von Maurer and Dr Stubbs.

For my hastily compiled Domesday Statistics I have apologized in the proper place. Here I will only add that I had but one long vacation to give to a piece of work that would have been better performed had it been spread over many years. Mr Corbett, of King’s College, has already shown me how by a little more patience and ingenuity I might have obtained some rounder and therefore more significant figures. But of this it is for him to speak.

Among the friends whom I wish to thank for their advice and assistance I am more especially grateful to Mr Herbert Fisher, of New College, who has borne the tedious labour of reading all my sheets, and to Mr W. H. Stevenson, of Exeter College, whose unrivalled knowledge of English diplomatics has been generously placed at my service.

F. W. M.

20 January, 1897.

CONTENTS.

LIST OF ABBREVIATIONS.

B. = Birch, Cartularium Saxonicum, London, 1885–7–93.

D. B. = Domesday Book.

E. = Earle, Land Charters, Oxford, 1888.

E. H. R. = English Historical Review.

H. & S. = Haddan and Stubbs, Councils and Ecclesiastical Documents, vol. iii, Oxford, 1871.

K. = Kemble, Codex Diplomaticus Ævi Saxonici, London, 1839–48.

T. = Thorpe, Diplomatarium Anglicanum, London, 1865.

ADDENDUM.

p. 347, note 794. Instances of the periodic reallotment of the whole land of a vill, exclusive of houses and crofts, seem to have been not unknown in the north of England. Here the reallotment is found in connexion with a husbandry which knows no permanent severance of the arable from the grass-land, but from time to time ploughs up a tract and after a while allows it to become grass-land once more. See F. W. Dendy, The Ancient Farms of Northumberland, Archaeologia Aeliana, Vol. xvi. I have to thank Mr Edward Bateson for a reference to this paper.

ESSAY I.
DOMESDAY BOOK.

Domesday Book and its satellites.

At midwinter in the year 1085 William the Conqueror wore his crown at Gloucester and there he had deep speech with his wise men. The outcome of that speech was the mission throughout all England of ‘barons,’ ‘legates’ or ‘justices’ charged with the duty of collecting from the verdicts of the shires, the hundreds and the vills a descriptio of his new realm. The outcome of that mission was the descriptio preserved for us in two manuscript volumes, which within a century after their making had already acquired the name of Domesday Book. The second of those volumes, sometimes known as Little Domesday, deals with but three counties, namely Essex, Norfolk and Suffolk, while the first volume comprehends the rest of England. Along with these we must place certain other documents that are closely connected with the grand inquest. We have in the so-called Inquisitio Comitatus Cantabrigiae, a copy, an imperfect copy, of the verdicts delivered by the Cambridgeshire jurors, and this, as we shall hereafter see, is a document of the highest value, even though in some details it is not always very trustworthy[2]. We have in the so-called Inquisitio Eliensis an account of the estates of the Abbey of Ely in Cambridgeshire, Suffolk and other counties, an account which has as its ultimate source the verdicts of the juries and which contains some particulars which were omitted from Domesday Book[3]. We have in the so-called Exon Domesday an account of Cornwall and Devonshire and of certain lands in Somerset, Dorset and Wiltshire; this also seems to have been constructed directly or indirectly out of the verdicts delivered in those counties, and it contains certain particulars about the amount of stock upon the various estates which are omitted from what, for distinction’s sake, is sometimes called the Exchequer Domesday[4]. At the beginning of this Exon Domesday we have certain accounts relating to the payment of a great geld, seemingly the geld of six shillings on the hide that William levied in the winter of 1083–4, two years before the deep speech at Gloucester[5]. Lastly, in the Northamptonshire Geld Roll[6] we have some precious information about fiscal affairs as they stood some few years before the survey[7].

Domesday and legal history.

Such in brief are the documents out of which, with some small help from the Anglo-Saxon dooms and land-books, from the charters of Norman kings and from the so-called Leges of the Conqueror, the Confessor and Henry I., some future historian may be able to reconstruct the land-law which obtained in the conquered England of 1086, and (for our records frequently speak of the tempus Regis Edwardi) the unconquered England of 1065. The reflection that but for the deep speech at Gloucester, but for the lucky survival of two or three manuscripts, he would have known next to nothing of that law, will make him modest and cautious. At the present moment, though much has been done towards forcing Domesday Book to yield its meaning, some of the legal problems that are raised by it, especially those which concern the time of King Edward, have hardly been stated, much less solved. It is with some hope of stating, with little hope of solving them that we begin this essay. If only we can ask the right questions we shall have done something for a good end. If English history is to be understood, the law of Domesday Book must be mastered. We have here an absolutely unique account of feudalism in two different stages of its growth, the more trustworthy, though the more puzzling, because it gives us particulars and not generalities.

Puzzling enough it certainly is, and this for many reasons. Our task may be the easier if we state some of those reasons at the outset.

Domesday a geld book.

To say that Domesday Book is no collection of laws or treatise on law would be needless. Very seldom does it state any rule in general terms, and when it does so we shall usually find cause for believing that this rule is itself an exception, a local custom, a provincial privilege. Thus, if we are to come by general rules, we must obtain them inductively by a comparison of many thousand particular instances. But further, Domesday Book is no register of title, no register of all those rights and facts which constitute the system of land-holdership. One great purpose seems to mould both its form and its substance; it is a geld-book.

Danegeld.

When Duke William became king of the English, he found (so he might well think) among the most valuable of his newly acquired regalia, a right to levy a land-tax under the name of geld or danegeld. A detailed history of that tax cannot be written. It is under the year 991 that our English chronicle first mentions a tribute paid to the Danes[8]; £10,000 was then paid to them. In 994 the yet larger sum of £16,000[9] was levied. In 1002 the tribute had risen to £24,000[10], in 1007 to £30,000[11], in 1009 East Kent paid £3,000[12]; £21,000 was raised in 1014[13]; in 1018 Cnut when newly crowned took £72,000 besides £11,000 paid by the Londoners[14]; in 1040 Harthacnut took £21,099 besides a sum of £11,048 that was paid for thirty-two ships[15]. With a Dane upon the throne, this tribute seems to have become an occasional war-tax. How often it was levied we cannot tell; but that it was levied more than once by the Confessor is not doubtful[16]. We are told that he abolished it in or about the year 1051, some eight or nine years after his accession, some fifteen before his death. No sooner was William crowned than ‘he laid on men a geld exceeding stiff.’ In the next year ‘he set a mickle geld’ on the people. In the winter of 1083–4 he raised a geld of 72 pence (6 Norman shillings) upon the hide. That this tax was enormously heavy is plain. Taking one case with another, it would seem that the hide was frequently supposed to be worth about £1 a year and there were many hides in England that were worth far less. But grievous as was the tax which immediately preceded the making of the survey, we are not entitled to infer that it was of unprecedented severity. It brought William but £415 or thereabouts from Dorset and £510 or thereabouts from Somerset[17]. Worcestershire was deemed to contain about 1200 hides and therefore, even if none of its hides had been exempted, it would have contributed but £360. If the huge sums mentioned by the chronicler had really been exacted, and that too within the memory of men who were yet living, William might well regard the right to levy a geld as the most precious jewel in his English crown. To secure a due and punctual payment of it was worth a gigantic effort, a survey such as had never been made and a record such as had never been penned since the grandest days of the old Roman Empire. But further, the assessment of the geld sadly needed reform. Owing to one cause and another, owing to privileges and immunities that had been capriciously granted, owing also, so we think, to a radically vicious method of computing the geldable areas of counties and hundreds, the old assessment was full of anomalies and iniquities. Some estates were over-rated, others were scandalously under-rated. That William intended to correct the old assessment, or rather to sweep it away and put a new assessment in its stead, seems highly probable, though it has not been proved that either he or his sons accomplished this feat[18]. For this purpose, however, materials were to be collected which would enable the royal officers to decide what changes were necessary in order that all England might be taxed in accordance with a just and uniform plan. Concerning each estate they were to know the number of geldable units (‘hides’ or ‘carucates’) for which it had answered in King Edward’s day, they were to know the number of plough oxen that there were upon it, they were to know its true annual value, they were to know whether that value had been rising or falling during the past twenty years. Domesday Book has well been called a rate book, and the task of spelling out a land law from the particulars that it states is not unlike the task that would lie before any one who endeavoured to construct our modern law of real property out of rate books, income tax returns and similar materials. All the lands, all the land-holders of England may be brought before us, but we are told only of such facts, such rights, such legal relationships as bear on the actual or potential payment of geld. True, that some minor purposes may be achieved by the king’s commissioners, though the quest for geld is their one main object. About the rents and renders due from his own demesne manors the king may thus obtain some valuable information. Also he may learn, as it were by the way, whether any of his barons or other men have presumed to occupy, to ‘invade,’ lands which he has reserved for himself. Again, if several persons are in dispute about a tract of ground, the contest may be appeased by the testimony of shire and hundred, or may be reserved for the king’s audience; at any rate the existence of an outstanding claim may be recorded by the royal commissioners. Here and there the peculiar customs of a shire or a borough will be stated, and incidentally the services that certain tenants owe to their lords may be noticed. But all this is done sporadically and unsystematically. Our record is no register of title, it is no feodary, it is no custumal, it is no rent roll; it is a tax book, a geld book.

The survey and the geld system.

We say this, not by way of vain complaint against its meagreness, but because in our belief a care for geld and for all that concerns the assessment and payment of geld colours far more deeply than commentators have usually supposed the information that is given to us about other matters. We should not be surprised if definitions and distinctions which at first sight have little enough to do with fiscal arrangements, for example the definition of a manor and the distinction between a villein and a ‘free man,’ involved references to the apportionment and the levy of the land-tax. Often enough it happens that legal ideas of a very general kind are defined by fiscal rules; for example, our modern English idea of ‘occupation’ has become so much part and parcel of a system of assessment that lawyers are always ready to argue that a certain man must be an ‘occupier’ because such men as he are rated to the relief of the poor. It seems then a fair supposition that any line that Domesday Book draws systematically and sharply, whether it be between various classes of men or between various classes of tenements, is somehow or another connected with the main theme of that book—geldability, actual or potential.

Weight of the danegeld.

Since we have mentioned the stories told by the chronicler about the tribute paid to the Danes, we may make a comment upon them which will become of importance hereafter. Those stories look true, and they seem to be accepted by modern historians. Had we been told just once that some large number of pounds, for example £60,000, was levied, or had the same round sum been repeated in year after year, we might well have said that such figures deserved no attention, and that by £60,000 our annalist merely meant a big sum of money. But, as will have been seen, he varies his figures from year to year and is not always content with a round number; he speaks of £21,099 and of £11,048[19]. We can hardly therefore treat his statements as mere loose talk and are reluctantly driven to suppose that they are true or near the truth. If this be so, then, unless some discovery has yet to be made in the history of money, no word but ‘appalling’ will adequately describe the taxation of which he speaks. We know pretty accurately the amount of money that became due when Henry I. or Henry II. imposed a danegeld of two shillings on the hide. The following table constructed from the pipe rolls will show the sum charged against each county. We arrange the shires in the order of their indebtedness, for a few of the many caprices of the allotment will thus be visible, and our table may be of use to us in other contexts[20].

Approximate Charge of a Danegeld of Two Shillings on the Hide in the Middle of the Twelfth Century.

The geld of old times.

Now be it understood that these figures do not show the amount of money that Henry I. and Henry II. could obtain by a danegeld. They had to take much less. When it was last levied, the tax was not bringing in £3500, so many were the churches and great folk who had obtained temporary or permanent exemptions from it. We will cite Leicestershire for example. The total of the geld charged upon it was almost exactly or quite exactly £100. On the second roll of Henry II.’s reign we find that £25. 7s. 6d. have been paid into the treasury, that £22. 8s. 3d. have been ‘pardoned’ to magnates and templars, that £51. 8s. 2d. are written off in respect of waste, and that 16s. 0d. are still due. On the eighth roll the account shows that £62. 12s. 7d. have been paid and that £37. 6s. 9d. have been ‘pardoned.’ No, what our table displays is the amount that would be raised if all exemptions were disregarded and no penny forborne. And now let us turn back to the chronicle and (not to take an extreme example) read of £30,000 being raised. Unless we are prepared to bring against the fathers of English history a charge of repeated, wanton and circumstantial lying, we shall think of the danegeld of Æthelred’s reign and of Cnut’s as of an impost so heavy that it was fully capable of transmuting a whole nation. Therefore the lines that are drawn by the incidence of this tribute will be deep and permanent; but still we must remember that primarily they will be fiscal lines.

Unstable terminology of the survey.

Then again, we ought not to look to Domesday Book for a settled and stable scheme of technical terms. Such a scheme could not be established in a brief twenty years. About one half of the technical terms that meet us, about one half of the terms which, as we think, ought to be precisely defined, are, we may say, English terms. They are ancient English words, or they are words brought hither by the Danes, or they are Latin words which have long been in use in England and have acquired special meanings in relation to English affairs. On the other hand, about half the technical terms are French. Some of them are old Latin words which have acquired special meanings in France, some are Romance words newly coined in France, some are Teutonic words which tell of the Frankish conquest of Gaul. In the one great class we place scira, hundredum, wapentac, hida, berewica, inland, haga, soka, saka, geldum, gablum, scotum, heregeat, gersuma, thegnus, sochemannus, burus, coscet; in the other comitatus, carucata, virgata, bovata, arpentum, manerium, feudum, alodium, homagium, relevium, baro, vicecomes, vavassor, villanus, bordarius, colibertus, hospes. It is not in twenty years that a settled and stable scheme can be formed out of such elements as these. And often enough it is very difficult for us to give just the right meaning to some simple Latin word. If we translate miles by soldier or warrior, this may be too indefinite; if we translate it by knight, this may be too definite, and yet leave open the question whether we are comparing the miles of 1086 with the cniht of unconquered England or with the knight of the thirteenth century. If we render vicecomes by sheriff we are making our sheriff too little of a vicomte. When comes is before us we have to choose between giving Britanny an earl, giving Chester a count, or offending some of our comites by invidious distinctions. Time will show what these words shall mean. Some will perish in the struggle for existence; others have long and adventurous careers before them. At present two sets of terms are rudely intermixed; the time when they will grow into an organic whole is but beginning.

Legal ideas of cent. xi.

To this we must add that, unless we have mistaken the general drift of legal history, the law implied in Domesday Book ought to be for us very difficult law, far more difficult than the law of the thirteenth century, for the thirteenth century is nearer to us than is the eleventh. The grown man will find it easier to think the thoughts of the school-boy than to think the thoughts of the baby. And yet the doctrine that our remote forefathers being simple folk had simple law dies hard. Too often we allow ourselves to suppose that, could we but get back to the beginning, we should find that all was intelligible and should then be able to watch the process whereby simple ideas were smothered under subtleties and technicalities. But it is not so. Simplicity is the outcome of technical subtlety; it is the goal not the starting point. As we go backwards the familiar outlines become blurred; the ideas become fluid, and instead of the simple we find the indefinite. But difficult though our task may be, we must turn to it.

§ 1. Plan of the Survey.

The geographical basis.

England was already mapped out into counties, hundreds or wapentakes and vills. Trithings or ridings appear in Yorkshire and Lincolnshire, lathes in Kent, rapes in Sussex, while leets appear, at least sporadically, in Norfolk[22]. These provincial peculiarities we must pass by, nor will we pause to comment at any length on the changes in the boundaries of counties and of hundreds that have taken place since the date of the survey. Though these changes have been many and some few of them have been large[23], we may still say that as a general rule the political geography of England was already stereotyped. And we see that already there are many curious anomalies, ‘detached portions’ of counties, discrete hundreds, places that are extra-hundredal[24], places that for one purpose are in one county and for another purpose in another county[25]. We see also that proprietary rights have already been making sport of arrangements which in our eyes should be fixed by public law. Earls, sheriffs and others have enjoyed a marvellous power of taking a tract of land out of one district and placing it, or ‘making it lie’ in another district[26]. Land is constantly spoken of as though it were the most portable of things; it can easily be taken from one vill or hundred and be added to or placed in or caused to lie in another vill or hundred. This ‘notional movability’ of land, if we may use such a term, will become of importance to us when we are studying the formation of manors.

The vill as the geographical unit.

For the present, however, we are concerned with the general truth that England is divided into counties, hundreds or wapentakes and vills. This is the geographical basis of the survey. That basis, however, is hidden from us by the form of our record. The plan adopted by those who fashioned Domesday Book out of the returns provided for them by the king’s commissioners is a curious, compromising plan. We may say that in part it is geographical, while in part it is feudal or proprietary. It takes each county separately and thus far it is geographical; but within the boundaries of each county it arranges the lands under the names of the tenants in chief who hold them. Thus all the lands in Cambridgeshire of which Count Alan is tenant in chief are brought together, no matter that they lie scattered about in various hundreds. Therefore it is necessary for us to understand that the original returns reported by the surveyors did not reach the royal treasury in this form. At least as regards the county of Cambridge, we can be certain of this. The hundreds were taken one by one; they were taken in a geographical order, and not until the justices had learned all that was to be known of Staplehow hundred did they call upon the jurors of Cheveley hundred for their verdict. That such was their procedure we might have guessed even had we not been fortunate enough to have a copy of the Cambridgeshire verdicts; for, though the commissioners seem to have held but one moot for each shire, still it is plain that each hundred was represented by a separate set of jurors[27]. But from these Cambridgeshire verdicts we learn what otherwise we could hardly have known. Within each hundred the survey was made by vills[28]. If we suppose the commissioners charging the jurors we must represent them as saying, not ‘Tell us what tenants in chief have lands in your hundred and how much each of them holds,’ but ‘Tell us about each vill in your hundred, who holds land in it.’ Thus, for example, the men of the Armingford hundred are called up. They make a separate report about each vill in it. They begin by stating that the vill is rated at a certain number of hides and then they proceed to distribute those hides among the tenants in chief. Thus, for example, they say that Abington was rated at 5 hides, and that those 5 hides are distributed thus[29]:

Now in Domesday Book we must look to several different pages to get this information about the vill of Abington,—dash;to one page for Earl Roger’s land, to another page for Picot’s land, and we may easily miss the important fact that this vill of Abington has been rated as a whole at the neat, round figure of 5 hides. And then we see that the whole hundred of Armingford has been rated at the neat, round figure of 100 hides, and has consisted of six vills rated at 10 hides apiece and eight vills rated at 5 hides apiece[30]. Thus we are brought to look upon the vill as a unit in a system of assessment. All this is concealed from us by the form of Domesday Book.

Stability of the vill.

When that book mentions the name of a place, when it says that Roger holds Sutton or that Ralph holds three hides in Norton, we regard that name as the name of a vill; it may or may not be also the name of a manor. Speaking very generally we may say that the place so named will in after times be known as a vill and in our own day will be a civil parish. No doubt in some parts of the country new vills have been created since the Conqueror’s time. Some names that occur in our record fail to obtain a permanent place on the roll of English vills, become the names of hamlets or disappear altogether; on the other hand, new names come to the front. Of course we dare not say dogmatically that all the names mentioned in Domesday Book were the names of vills; very possibly (if this distinction was already known) some of them were the names of hamlets; nor, again, do we imply that the villa of 1086 had much organization; but a place that is mentioned in Domesday Book will probably be recognized as a vill in the thirteenth, a civil parish in the nineteenth century. Let us take Cambridgeshire by way of example. Excluding the Isle of Ely, we find that the political geography of the Conqueror’s reign has endured until our own time. The boundaries of the hundreds lie almost where they lay, the number of vills has hardly been increased or diminished. The chief changes amount to this:—A small tract on the east side of the county containing Exning and Bellingham has been made over to Suffolk; four other names contained in Domesday no longer stand for parishes, while the names of five of our modern parishes—one of them is the significant name of Newton—are not found there[31]. But about a hundred and ten vills that were vills in 1086 are vills or civil parishes at the present day, and in all probability they then had approximately the same boundaries that they have now.

Omission of vills.

This may be a somewhat too favourable example of permanence and continuity. Of all counties Cambridgeshire is the one whose ancient geography can be the most easily examined; but wherever we have looked we have come to the conclusion that the distribution of England into vills is in the main as old as the Norman conquest[32]. Two causes of difficulty may be noticed, for they are of some interest. Owing to what we have called the ‘notional movability’ of land, we never can be quite sure that when certain hides or acres are said to be in or lie in a certain place they are really and physically in that place. They are really in one village, but they are spoken of as belonging to another village, because their occupants pay their geld or do their services in the latter. Manorial and fiscal geography interferes with physical and villar geography. We have lately seen how land rated at five hides was comprised, as a matter of fact, in the vill of Abington; but of those five hides, one virgate ‘lay in’ Shingay, a half-hide ‘lay in’ Litlington while a half-virgate ‘lay and had always lain’ in Morden[33]. This, if we mistake not, leads in some cases to an omission of the names of small vills. A great lord has a compact estate, perhaps the whole of one of the small southern hundreds. He treats it as a whole, and all the land that he has there will be ascribed to some considerable village in which he has his hall. We should be rash in supposing that there were no other villages on this land. For example, in Surrey there is now-a-days a hundred called Farnham which comprises the parish of Farnham, the parish of Frensham and some other villages. If we mistake not, all that Domesday Book has to say of the whole of this territory is that the Bishop of Winchester holds Farnham, that it has been rated at 60 hides, that it has been worth the large sum of £65 a year and that there are so many tenants upon it[34]. We certainly must not draw the inference that there was but one vill in this tract. If the bishop is tenant in chief of the whole hundred and has become responsible for all the geld that is levied therefrom, there is no great reason why the surveyors should trouble themselves about the vills. Thus the simple Episcopus tenet Ferneham may dispose of some 25,000 acres of land. So the same bishop has an estate at Chilcombe in Hampshire; but clearly the name Ciltecumbe covers a wide territory for there are no less than nine churches upon it[35]. We never can be very certain about the boundaries of these large and compact estates.

Fission of vills.

A second cause of difficulty lies in the fact that in comparatively modern times, from the twelfth century onwards, two or three contiguous villages will often bear the same name and be distinguished only by what we may call their surnames—thus Guilden Morden and Steeple Morden, Stratfield Saye, Stratfield Turgis, Stratfield Mortimer, Tolleshunt Knights, Tolleshunt Major, Tolleshunt Darcy. Such cases are common; in some districts they are hardly exceptional. Doubtless they point to a time when a single village by some process of colonization or subdivision become two villages. Now Domesday Book seldom enables us to say for certain whether the change has already taken place. In a few instances it marks off the little village from the great village of the same name[36]. In some other instances it will speak, for example, of Mordune and Mordune Alia, of Emingeforde and Emingeforde Alia, or the like, thus showing both that the change has taken place, and also that it is so recent that it is recognized only by very clumsy terms. In Cambridgeshire, since we have the original verdicts, we can see that the two Mordens are already distinct; the one is rated at ten hides, the other at five[37]. On the other hand, we can see that our Great and Little Shelford are rated as one vill of twenty hides[38], our Castle Camps and Shudy Camps as one vill of five hides[39]. Elsewhere we are left to guess whether the fission is complete, and the surnames that many of our vills ultimately acquire, the names of families which rose to greatness in the twelfth and thirteenth centuries, will often suggest that the surveyors saw but one vill where we see two[40]. However, the broad truth stands out that England was divided into vills and that in general the vill of Domesday Book is still a vill in after days[41].

The nucleated village and the vill of scattered steads.

The ‘vill’ or ‘town’ of the later middle ages was, like the ‘civil parish’ of our own day, a tract of land with some houses on it, and this tract was a unit in the national system of police and finance[42], But we are not entitled to make for ourselves any one typical picture of the English vill. We are learning from the ordnance map (that marvellous palimpsest, which under Dr Meitzen’s guidance we are beginning to decipher) that in all probability we must keep at least two types before our minds. On the one hand, there is what we might call the true village or the nucleated village. In the purest form of this type there is one and only one cluster of houses. It is a fairly large cluster; it stands in the midst of its fields, of its territory, and until lately a considerable part of its territory will probably have consisted of spacious ‘common fields.’ In a country in which there are villages of this type the parish boundaries seem almost to draw themselves[43]. On the other hand, we may easily find a country in which there are few villages of this character. The houses which lie within the boundary of the parish are scattered about in small clusters; here two or three, there three or four. These clusters often have names of their own, and it seems a mere chance that the name borne by one of them should be also the name of the whole parish or vill[44]. We see no traces of very large fields. On the face of the map there is no reason why a particular group of cottages should be reckoned to belong to this parish rather than to the next. As our eyes grow accustomed to the work we may arrive at some extremely important conclusions such as those which Meitzen has suggested. The outlines of our nucleated villages may have been drawn for us by Germanic settlers, whereas in the land of hamlets and scattered steads old Celtic arrangements may never have been thoroughly effaced. Towards theories of this kind we are slowly winning our way. In the meantime let us remember that a villa of Domesday Book may correspond to one of at least two very different models or may be intermediate between various types. It may be a fairly large and agrarianly organic unit, or it may be a group of small agrarian units which are being held together in one whole merely by an external force, by police law and fiscal law[45].

Illustrations by maps.

Two little fragments of ‘the original one inch ordnance map’ will be more eloquent than would be many paragraphs of written discourse. The one pictures a district on the border between Oxfordshire and Berkshire cut by the Thames and the main line of the Great Western Railway; the other a district on the border between Devon and Somerset, north of Collumpton and south of Wiveliscombe. Neither is an extreme example. True villages we may easily find. Cambridgeshire, for instance, would have afforded some beautiful specimens, for many of the ‘open fields’ were still open when the ordnance map of that county was made. But throughout large tracts of England, even though there has been an ‘inclosure’ and there are no longer any open fields, our map often shows a land of villages. When it does so and the district that it portrays is a purely agricultural district, we may generally assume without going far wrong that the villages are ancient, for during at least the last three centuries the predominant current in our agrarian history has set against the formation of villages and towards the distribution of scattered homesteads. To find the purest specimens of a land of hamlets we ought to go to Wales or to Cornwall or to other parts of ‘the Celtic fringe’; very fair examples might be found throughout the west of England. Also we may perhaps find hamlets rather than villages wherever there have been within the historic period large tracts of forest land. Very often, again, the parish or township looks on our map like a hybrid. We seem to see a village with satellitic hamlets. Much more remains to be done before we shall be able to construe the testimony of our fields and walls and hedges, but at least two types of vill must be in our eyes when we are reading Domesday Book[46].

A LAND OF VILLAGES
On the border between Oxfordshire and Berkshire.

[[Larger map]]

[Between pp. 16–17]

A LAND OF HAMLETS
On the border between Somerset and Devon.

[[Larger map]]

Size of the vill.

To say that the villa of Domesday Book is in general the vill of the thirteenth century and the civil parish of the nineteenth is to say that the areal extent of the villa varied widely from case to case. More important is it for us to observe that the number of inhabitants of the villa varied widely from case to case. The error into which we are most likely to fall will be that of making our vill too populous. Some vills, especially some royal vills, are populous enough; a few contain a hundred households; but the average township is certainly much smaller than this[47]. Before we give any figures, it should first be observed that Domesday Book never enables us to count heads. It states the number of the tenants of various classes, sochemanni, villani, bordarii, and the like, and leaves us to suppose that each of these persons is, or may be, the head of a household. It also states how many servi there are. Whether we ought to suppose that only the heads of servile households are reckoned, or whether we ought to think of the servi as having no households but as living within the lord’s gates and being enumerated, men, women and able-bodied children, by the head—this is a difficult question. Still we may reach some results which will enable us to compare township with township. By way of fair sample we may take the Armingford hundred of Cambridgeshire, and all persons who are above the rank of servi we will include under the term ‘the non-servile population[48].’

Armingford Hundred.

Here in fourteen vills we have an average of thirty-two non-servile households for every vill. Now even in our own day a parish with thirty-two houses, though small, is not extremely small. But we should form a wrong picture of the England of the eleventh century if we filled all parts of it with such vills as these. We will take at random fourteen vills in Staffordshire held by Earl Roger[49].

Here for fourteen vills we have an average of but fourteen non-servile households and the servi are so few that we may neglect them. We will next look at a page in the survey of Somersetshire which describes certain vills that have fallen to the lot of the bishop of Coutances[50].

Here we have on the average but eleven non-servile households for each village, and even if we suppose each servus to represent a household, we have not fourteen households. Yet smaller vills will be found in Devonshire, many vills in which the total number of the persons mentioned does not exceed ten and near half of these are servi. In Cornwall the townships, if townships we ought to call them, are yet smaller; often we can attribute no more than five or six families to the vill even if we include the servi.

Population of the vills.

Contrast between east and west.

Unless our calculations mislead us, the density of the population in the average vill of a given county varies somewhat directly with the density of the population in that county; at all events we can not say that where vills are populous, vills will be few. As regards this matter no precise results are attainable; our document is full of snares for arithmeticians. Still if for a moment we have recourse to the crude method of dividing the number of acres comprised in a modern county by the number of the persons who are mentioned in the survey of that county, the outcome of our calculation will be remarkable and will point to some broad truth[51]. For Suffolk the quotient is 46 or thereabouts; for Norfolk but little larger[52]; for Essex 61, for Lincoln 67; for Bedford, Berkshire, Northampton, Leicester, Middlesex, Oxford, Kent and Somerset it lies between 70 and 80, for Buckingham, Warwick, Sussex, Wiltshire and Dorset it lies between 80 and 90; Devon, Gloucester, Worcester, Hereford are thinly peopled, Cornwall, Stafford, Shropshire very thinly. Some particular results that we should thus attain would be delusive. Thus we should say that men were sparse in Cambridgeshire, did we not remember that a large part of our modern Cambridgeshire was then a sheet of water. Permanent physical causes interfere with the operation of the general rule. Thus Surrey, with its wide heaths has, as we might expect, but few men to the square mile. Derbyshire has many vills lying waste; Yorkshire is so much wasted that it can give us no valuable result; and again, Yorkshire and Cheshire were larger than they are now, while Rutland and the adjacent counties had not their present boundaries. For all this however, we come to a very general rule:—the density of the population decreases as we pass from east to west. With this we may connect another rule:—land is much more valuable in the east than it is in the west. This matter is indeed hedged in by many thorny questions; still whatever hypothesis we may adopt as to the mode in which land was valued, one general truth comes out pretty plainly, namely, that, economic arrangements being what they were, it was far better to have a team-land in Essex than to have an equal area of arable land in Devon.

Small vills.

Between eastern and western England there were differences visible to the natural eye. With these were connected unseen and legal differences, partly as causes, partly as effects. But for the moment let us dwell on the fact that many an English vill has very few inhabitants. We are to speak hereafter of village communities. Let us therefore reflect that a community of some eight or ten householders is not likely to be a highly organized entity. This is not all, for these eight or ten householders will often belong to two, three or four different social and economic, if not legal, classes. Some may be sokemen, some villani, bordarii, cotarii, and besides them there will be a few servi. If a vill consists, as in Devonshire often enough it will, of some three villani, some four bordarii and some two servi, the ‘township-moot,’ if such a moot there be, will be a queer little assembly, the manorial court, if such a court there be, will not have much to do. These men can not have many communal affairs; there will be no great scope for dooms or for by-laws; they may well take all their disputes into the hundred court, especially in Devonshire where the hundreds are small. Thus of the visible vill of the eleventh century and its material surroundings we may form a wrong notion. Often enough in the west its common fields (if common fields it had) were not wide fields; the men who had shares therein were few and belonged to various classes. Thus of two villages in Gloucestershire, Brookthorpe and Harescombe, all that we can read is that in Brostrop there were two teams, one villanus, three bordarii, four servi, while in Hersecome there were two teams, two bordarii and five servi[53]. Many a Devonshire township can produce but two or three teams. Often enough our ‘village community’ will be a heterogeneous little group whose main capital consists of some 300 acres of arable land and some 20 beasts of the plough.

Importance of the east.

On the other hand, we must be careful not to omit from our view the rich and thickly populated shires or to imagine or to speak as though we imagined that a general theory of English history can neglect the East of England. If we leave Lincolnshire, Norfolk and Suffolk out of account we are to all appearance leaving out of account not much less than a quarter of the whole nation[54]. Let us make three groups of counties: (1) a South-Western group containing Devon, Somerset, Dorset and Wiltshire: (2) a Mid-Western group containing the shires of Gloucester, Worcester, Hereford, Salop, Stafford and Warwick: (3) an Eastern group containing Lincolnshire, Norfolk and Suffolk. The first of these groups has the largest; the third the smallest acreage. In Domesday Book, however, the figures which state their population seem to be these[55]:—

These figures are so emphatic that they may cause us for a moment to doubt their value, and on details we must lay no stress. But we have materials which enable us to check the general effect. In 1297 Edward I. levied a lay subsidy of a ninth[56]. The sums borne by our three groups of counties were these:—

There is a curious resemblance between these two sets of figures. Then in 1377 and 1381 returns were made for a poll-tax[57]. The number of polls returned in our three groups were these:—

No doubt all inferences drawn from medieval statistics are exceedingly precarious; but, unless a good many figures have conspired to deceive us, Lincolnshire, Norfolk and Suffolk were at the time of the Conquest and for three centuries afterwards vastly richer and more populous than any tract of equal area in the West.

Manorial and non-manorial vills.

Another distinction between the eastern counties and the rest of England is apparent. In many shires we shall find that the name of each vill is mentioned once and no more. This is so because the land of each vill belongs in its entirety to some one tenant in chief. We may go further: we may say, though at present in an untechnical sense, that each vill is a manor. Such is the general rule, though there will be exceptions to it. On the other hand, in the eastern counties this rule will become the exception. For example, of the fourteen vills in the Armingford hundred of Cambridgeshire there is but one of which it is true that the whole of its land is held by a single tenant in chief. In this county it is common to find that three or four Norman lords hold land in the same vill. This seems true not only of Cambridgeshire but also of Essex, Suffolk, Norfolk, Lincoln, Nottingham, Derby, and some parts of Yorkshire. Even in other districts of England the rule that each vill has a single lord is by no means unbroken in the Conqueror’s day and we can see that there were many exceptions to it in the Confessor’s. A careful examination of all England vill by vill would perhaps show that the contrast which we are noting is neither so sharp nor so ancient as at first sight it seems to be: nevertheless it exists.

The distribution of free men and serfs.

A better known contrast there is. The eastern counties are the home of liberty[58]. We may divide the tillers of the soil into five great classes; these in order of dignity and freedom are (1) liberi homines, (2) sochemanni, (3) villani, (4) bordarii, cotarii etc., (5) servi. The two first of these classes are to be found in large numbers only in Norfolk, Suffolk, Lincolnshire, Nottinghamshire, Leicestershire and Northamptonshire. We shall hereafter see that Cambridgeshire also has been full of sokemen, though since the Conquest they have fallen from their high estate. On the other hand, the number of servi increases pretty steadily as we cross the country from east to west. It reaches its maximum in Cornwall and Gloucestershire; it is very low in Norfolk, Suffolk, Derby, Leicester, Middlesex, Sussex; it descends to zero in Yorkshire and Lincolnshire. This descent to zero may fairly warn us that the terms with which we are dealing may not bear precisely the same meaning in all parts of England, or that a small class is apt to be reckoned as forming part of a larger class. But still it is clear enough that some of these terms are used with care and express real and important distinctions.

The classification of men.

Of this we are assured by a document which seems to reproduce the wording of the instructions which defined the duty of at least one party of royal commissioners[59]. We are about to speak of the mode in which the occupants of the soil are classified by Domesday Book, and therefore this document deserves our best attention. It runs thus:—The King’s barons inquired by the oath of the sheriff of the shire and of all the barons and of their Frenchmen and of the whole hundred, the priest, reeve and six villani of every vill, how the mansion (mansio) is called, who held it in the time of King Edward, who holds it now, how many hides, how many plough-teams on the demesne, how many plough-teams of the men, how many villani, how many cotarii, how many servi, how many liberi homines, how many sochemanni, how much wood, how much meadow, how much pasture, how many mills, how many fisheries, how much has been taken away therefrom, how much added thereto, and how much there is now, how much each liber homo and sochemannus had and has:—All this thrice over, to wit as regards the time of King Edward, the time when King William gave it, and the present time, and whether more can be had thence than is had now[60].

Basis of classification.

Five classes of men are mentioned and they are mentioned in an order that is extremely curious:—villani, cotarii, servi, liberi homines, sochemanni. It descends three steps, then it leaps from the very bottom of the scale to the very top and thence it descends one step. A parody of it might speak of the rural population of modern England as consisting of large farmers, small farmers, cottagers, great landlords, small landlords. But a little consideration will convince us that beneath this apparent caprice there lies some legal principle. We shall observe that these five species of tenants are grouped into two genera. The king wants to know how much each liber homo, how much each sochemannus holds; he does not want to know how much each villanus, each cotarius, each servus holds. Connecting this with the main object of the whole survey, we shall probably be brought to the guess that between the sokeman and the villein there is some broad distinction which concerns the king as the recipient of geld. May it not be this:—the villein’s lord is answerable for the geld due from the land that the villein holds, the sokeman’s lord is not answerable, at least he is not answerable as principal debtor for the geld due from the land that the sokeman holds? If this be so, the order in which the five classes of men are mentioned will not seem unnatural. It proceeds outwards from the lord and his mansio. First it mentions the persons seated on land for the geld of which he is responsible, and them it arranges in an ‘order of merit.’ Then it turns to persons who, though in some way or another connected with the lord and his mansio, are themselves tax-payers, and concerning them the commissioners are to inquire how much each of them holds. Of course we can not say that this theory is proved by the statement that lies before us; but it is suggested by that statement and may for a while serve us as a working hypothesis. If this theory be sound, then we have here a distinction of the utmost importance. For one mighty purpose, the purpose that is uppermost in King William’s mind, the villanus is not a landowner, his lord is the landowner; on the other hand the sochemannus is a landowner, and is taxed as such. We are not saying that this is a purely fiscal distinction. In legal logic the lord’s liability for the geld that is apportioned on the land occupied by his villeins may be rather an effect than a cause. A lawyer might argue that the lord must pay because the occupier is his villanus, not that the occupier is a villanus because the lord pays. And yet, as we may often see in legal history, there will be action and reaction between cause and effect. The geld is no trifle. Levied at that rate of six shillings on the hide at which King William has just now levied it, it is a momentous force capable of depressing and displacing whole classes of men. In 1086 this tax is so much in everybody’s mind that any distinction as to its incidence will cut deeply into the body of the law.

Our course.

Now this classification of men we will take as the starting point for our enterprise. If we could define the liber homo, sochemannus, villanus, cotarius, servus, we should have solved some of the great legal problems of Domesday Book, for by the way we should have had to define two other difficult terms, namely manerium and soca. It would then remain that we should say something of the higher strata of society, of earls and sheriffs, of barons, knights, thegns and their tenures, of such terms as alodium and feudum, of the general theory of landownership or landholdership. We will begin with the lowest order of men, with the servi, and thence work our way upwards. But our course can not be straightforward. There are so many terms to be explained that sometimes we shall be compelled to leave a question but partially answered while we are endeavouring to find a partial answer for some yet more difficult question.

§ 2. The Serfs.

The serfs in Domesday Book.

The existence of some 25,000 serfs is recorded. In the thirteenth century servus and villanus are, at least among lawyers, equivalent words. The only unfree man is the ‘serf-villein’ and the lawyers are trying to subject him to the curious principle that he is the lord’s chattel but a free man in relation to all but his lord[61]. It is far otherwise in Domesday Book. In entry after entry and county after county the servi are kept well apart from the villani, bordarii, cotarii. Often they are mentioned in quite another context to that in which the villani are enumerated. As an instance we may take a manor in Surrey[62]:—‘In demesne there are 5 teams and there are 25 villani and 6 bordarii with 14 teams. There is one mill of 2 shillings and one fishery and one church and 4 acres of meadow, and wood for 150 pannage pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the wood and 10 servi.’ Often enough the servi are placed between two other sources of wealth, the church and the mill. In some counties they seem to take precedence over the villani; the common formula is ‘In dominio sunt a carucae et b servi et c villani et d bordarii cum e carucis.’ But this is delusive; the formula is bringing the servi into connexion with the demesne teams and separating them from the teams of the tenants. We must render it thus—‘On the demesne there are a teams and b servi; and there are c villani and d bordarii with e teams.’ Still we seem to see a gently graduated scale of social classes, villani, bordarii, cotarii, servi, and while the jurors of one county will arrange them in one fashion, the jurors of another county may adopt a different scheme. Thus in their classification of mankind the jurors will sometimes lay great stress on the possession of plough oxen. In Hertfordshire we read:—‘There are 6 teams in demesne and 41 villani and 17 bordarii have 20 teams ... there are 22 cotarii and 12 servi[63].’—‘The priest, 13 villani and 4 bordarii have 6 teams ... there are two cotarii and 4 servi[64].’—‘The priest and 24 villani have 13 teams ... there are 12 bordarii, 16 cotarii and 11 servi[65].’ A division is in this instance made between the people who have oxen and the people who have none; villani have oxen, cotarii and servi have none; sometimes the bordarii stand above this line, sometimes below it.

Legal position of the serf.

Of the legal position of the servus Domesday Book tells us little or nothing; but earlier and later documents oblige us to think of him as a slave, one who in the main has no legal rights. He is the theów of the Anglo-Saxon dooms, the servus of the ecclesiastical canons. But though we do right in calling him a slave, still we might well be mistaken were we to think of the line which divides him from other men as being as sharp as the line which a mature jurisprudence will draw between thing and person. We may well doubt whether this principle—‘The slave is a thing, not a person’—can be fully understood by a grossly barbarous age. It implies the idea of a person, and in the world of sense we find not persons but men.

Degrees of serfdom.

Thus degrees of servility are possible. A class may stand, as it were, half-way between the class of slaves and the class of free men. The Kentish law of the seventh century as it appears in the dooms of Æthelbert[66], like many of its continental sisters, knows a class of men who perhaps are not free men and yet are not slaves; it knows the læt as well as the theów. From what race the Kentish læt has sprung, and how, when it comes to details, the law will treat him—these are obscure questions, and the latter of them can not be answered unless we apply to him what is written about the laeti, liti and lidi of the continent. He is thus far a person that he has a small wergild but possibly he is bound to the soil. Only in Æthelbert’s dooms do we read of him. From later days, until Domesday Book breaks the silence, we do not obtain any definite evidence of the existence of any class of men who are not slaves but none the less are tied to the land. Of men who are bound to do heavy labour services for their lords we do hear, but we do not hear that if they run away they can be captured and brought back. As we shall see by and by, Domesday Book bears witness to the existence of a class of buri, burs, coliberti, who seem to be distinctly superior to the servi, but distinctly inferior to the villeins, bordiers and cottiers. It is by no means impossible that they, without being slaves, are in a very proper and intelligible sense unfree men, that they have civil rights which they can assert in courts of law, but that they are tied to the soil. The gulf between the seventh and the eleventh centuries is too wide to allow of our connecting them with the læt of Æthelbert’s laws, but still our documents are not exhaustive enough to justify us in denying that all along there has been a class (though it can hardly have been a large class) of men who could not quit their tenements and yet were no slaves. As we shall see hereafter, liberty was in certain contexts reckoned a matter of degree; even the villanus, even the sochemannus was not for every purpose liber homo. When this is so, the theów or servus is like to appear as the unfreest of persons rather than as no person but a thing.

Prædial element in serfage.

In the second place, we may guess that from a remote time there has been in the condition of the theów a certain element of praediality. The slaves have not been worked in gangs nor housed in barracks[67]. The servus has often been a servus casatus, he has had a cottage or even a manse and yardland which de facto he might call his own. There is here no legal limitation of his master’s power. Some slave trade there has been; but on the whole it seems probable that the theów has been usually treated as annexed to a tenement. The duties exacted of him from year to year have remained constant. The consequence is that a free man in return for a plot of land may well agree to do all that a theów usually does and see in this no descent into slavery. Thus the slave gets a chance of acquiring what will be as a matter of fact a peculium. In the seventh century the church tried to turn this matter of fact into matter of law. ‘Non licet homini,’ says Theodore’s Penitential, ‘a servo tollere pecuniam, quam ipse labore suo adquesierit[68].’ We have no reason for thinking that this effort was very strenuous or very successful, or that the law of the eleventh century allowed the servus any proprietary rights; and yet he might often be the occupier of land and of chattels with which, so long as he did his customary services, his lord would seldom meddle.

The serf in criminal law.

In the third place, we may believe that for some time past police law and punitive law have been doing something to conceal, if not to obliterate, the line which separates the slave from other men. A mature jurisprudence may be able to hold fast the fundamental principle that a slave is not a person but a thing, while at the same time it both limits the master’s power of abusing his human chattel and guards against those dangers which may arise from the existence of things which have wills, and sometimes bad wills, of their own. But an immature jurisprudence is incapable of this exploit. It begins to play fast and loose with its elementary notions. It begins to punish the criminous slave without being quite certain as to how far it is punishing him and how far it is punishing his master. Confusion is easy, for if the slave be punished by death or mutilation, his master will suffer, and a pecuniary mulct exacted from the slave is exacted from his master. Learned writers have come to the most opposite opinions as to the extent to which the Anglo-Saxon dooms by their distribution of penalties recognize the personality of the theów. But this is not all. For a long time past the law has had before it the difficult problem of dealing with crimes and delicts committed by poor and economically dependent free men, men who have no land of their own, who are here to-day and gone to-morrow, ‘men from whom no right can be had.’ It has been endeavouring to make the lords answerable to a certain extent for the misdeeds of their free retainers. If a slave is charged with a crime his master is bound to produce him in court. But the law requires that the lord shall in very similar fashion produce his free ‘loaf eater,’ his mainpast, nay, it has been endeavouring to enforce the rule that every free man who has no land of his own shall have a lord bound to produce him when he is accused. Also it has been fostering the growth of private justice. The lord’s duty of producing his men, bond and free, has been becoming the duty of holding a court in which his men, free and bond, will answer for themselves. How far this process had gone in the days of the Confessor is a question to which we shall return[69].

Serf and villein.

For all this however, we may say with certainty that in the eleventh century the servi were marked off from all other men by definite legal lines. What is more, we may say that every man who was not a theów was in some definite legal sense a free man. This sharp contrast is put before us by the laws of Cnut as well as by those of his predecessors. If a freeman works on a holiday, he pays for it with his healsfang; if a theówman does the like, he pays for it with his hide or his hide-geld[70]. Equally sharp is the same distinction in the Leges Henrici, and this too in passages which, so far as we know, are not borrowed from Anglo-Saxon documents. For many purposes ‘aut servus aut liber homo’ is a perfect dilemma. There is no confusion whatever between the villani and the servi. The villani are ‘viles et inopes personae’ but clearly enough they are liberi homines. So also in the Quadripartitus, the Latin translation of the ancient dooms made in Henry I.’s reign, there is no confusion about this matter; the theówman becomes a servus, while villanus is the equivalent for ceorl. The Norman writers still tell how according to the old law of the English the villanus might become a thegn if he acquired five hides of land[71]; at times they will put before us villani and thaini or even villani and barones as an exhaustive classification of free men[72].

The serf of the Leges.

Let us learn what may be learnt of the servus from theLeges Henrici. Every man is either a liber homo or a servus[73]. Free men are either two-hundred-men or twelve-hundred-men; perhaps we ought to add that there is also a class of six-hundred-men[74]. A serf becomes such either by birth or by some event, such as a sale into slavery, that happens in his lifetime[75]. Servile blood is transmitted from father to child; some lords hold that it is also transmitted by mother to child[76]. If a slave is to be freed this should be done publicly, in court, or church or market, and lance and helmet or other the arms of free men should be given him, while he should give his lord thirty pence, that is the price of his skin, as a sign that he is henceforth ‘worthy of his hide.’ On the other hand, when a free man falls into slavery then also there should be a public ceremony. He should put his head between his lord’s hands and should receive as the arms of slavery some bill-hook or the like[77]. Public ceremonies are requisite, for the state is endangered by the uncertain condition of accused criminals; the lords will assert at one moment that their men are free and at the next moment that these same men are slaves[78]. The descent of a free man into slavery is treated as no uncommon event; the slave may well have free kinsfolk[79]. But, to come to the fundamental rule, the villanus, the meanest of free men, is a two-hundred-man, that is to say, if he be slain the very substantial wergild of 200 Saxon shillings or £4 must be paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his lord[81]. But if a servus be slain his kinsfolk receive the comparatively trifling sum of 40 pence while the lord gets the man-bót of 20 shillings[82]. That the serf’s kinsfolk should receive a small sum need not surprise us. Germanic law has never found it easy to carry the principle that the slave is a chattel to extreme conclusions; but the payment seems trifling and half contemptuous; at any rate the life of the villein is worth the life of twenty-four serfs[83]. Then again, it is by no means certain that a lord can not kill his serf with impunity. ‘If,’ says our text, ‘a man slay his own serf, his is the sin and his is the loss’:—we may interpret this to mean that he has sinned but sinned against himself[84]. Then again, for the evil deeds of his slave the master is in some degree responsible. If my slave be guilty of a petty theft not worthy of death, I am bound to make restitution; if the crime be a capital one and he be taken handhaving, then he must ‘die like a free man[85].’ If my slave be guilty of homicide, my duty is to set him free and hand him over to the kindred of the slain, but apparently I may purchase his life by a sum of 40 shillings, a sum much less than the wer of the slain man[86]. We must not be too hard on the owners of delinquent slaves. There are cases, for example, in which, several slaves having committed a crime, one of them chosen by lot must suffer for the sins of all[87]. Our author is borrowing from the laws of several different centuries and does not arrive at any neat result; nor must we wonder at this, for the problems presented to jurisprudence by the crimes and delicts of slaves are very intricate. Then again, we have the rule that if free men and serfs join in a crime, the whole guilt is to be attributed to the free: he who joins with a slave in a theft has no companion[88]. On the whole, though the slave is likely to have as a matter of fact a peculium of his own, a peculium out of which he may be able to pay for his offences and even perhaps to purchase his liberty[89], the servus of our Leges seems to be in the main a rightless being. We look in vain for any trace of that idea of the relativity of servitude which becomes the core of Bracton’s doctrine[90]. At the same time we observe that many, perhaps most, of the rules which mark the slavish condition of the serf are ancient rules and rules that are becoming obsolete. In the twelfth century the old system of wer and bót is already vanishing, though an antiquarian lawyer may yet try to revivify it. When it disappears altogether before the new law, which holds every grave crime to be a felony, and punishes almost every felony with death[91], many grand differences between the villein and the serf will have perished. The gallows is a great leveller.

Return to the servus of Domesday.

If now we recur to the days of the Conquest, we cannot doubt that the law knew a definite class of slaves, and marked them off by many distinctions from the villani and cotarii, and even from the coliberti. Sums that seem high were being paid for men whose freedom was being purchased[92]. At Lewes the toll paid for the sale of an ox was a halfpenny; on the sale of a man it was fourpence[93]. In later documents we may sometimes see a distinction well drawn. Thus in the Black Book of Peterborough, compiled in 1127 or thereabouts, we may read how on one of his manors the abbot has eight herdsmen (bovarii), how each of them holds ten acres, has to do labour services and render loaves and poultry. And then we read that each of them must pay one penny for his head if he be a free man (liber homo), while he pays nothing if he be a servus[94]. This is a well-drawn distinction. Of two men whose economic position is precisely the same, the one may be free, the other a slave, and it is the free man, not the slave, who has to pay a head-penny. Now when the Conqueror’s surveyors, or rather the jurors, call a man a servus they are, so it seems to us, thinking rather of his legal status than of his position in the economy of a manor. At any rate we ought to observe that the economic stratification of society may cut the legal stratification. We are accustomed perhaps to suppose that while the villani have lands that are in some sense their own, while they support themselves and their families by tilling those lands, the servus has no land that is in any sense his own, but is fed at his lord’s board, is housed in his lord’s court, and spends all his time in the cultivation of his lord’s demesne lands. Such may have been the case in those parts of England where we hear of but few servi; those few may have been inmates of the lord’s house and have had no plots of their own. But such can hardly have been the case in the south-western counties; the servi are too many to be menials. Indeed it would seem that these servi sometimes had arable plots, and had oxen, which were to be distinguished from the demesne oxen of their lords—not indeed as a matter of law, but as a matter of economic usage[95]. It is plain that the legal and the economic lines may intersect one another; the menial who is fed by the lord and who must give his whole time to the lord’s work may be a free man; the slave may have a cottage and oxen and a plot of arable land, and labour for himself as well labouring for his lord. Hence a perplexed and uncertain terminology:—the servus who has land and oxen may be casually called a villanus[96], and we cannot be sure that no one whom our record calls a servus has the wergild of a free man. Nor can we be sure that the enumeration of the servi is always governed by one consistent principle. In the shires of Gloucester, Hereford and Worcester we read of numerous ancillae—in Worcestershire of 677 servi and 101 ancillae[97]—and this may make us think that in this district all the able-bodied serfs are enumerated, whether or no they have cottages to themselves[98]. We may strongly suspect that the king’s commissioners were not much interested in the line that separated the villani from the servi, since the lord was as directly answerable for the geld of any lands that were in the occupation of his villeins as he was for the geld of those plots that were tilled for him by his slaves. That there should have been never a theów in all Yorkshire and Lincolnshire is hardly credible, and yet we hear of no servi in those counties.

Disappearance of servi.

This being so, we encounter some difficulty if we would put just the right interpretation on a remarkable fact that is visible in Essex. The description of that county tells us not only how many villani, bordarii and servi there are now, but also how many there were in King Edward’s day, and thus shows what changes have taken place during the last twenty years. Now on manor after manor the number of villeins and bordiers, if of them we make one class, has increased, while the number of servi has fallen. We take 100 entries (four batches of 25 apiece) and see that the number of villani and bordarii has risen from 1486 to 1894, while the number of servi has fallen from 423 to 303. We make another experiment with a hundred entries. This gives the following result:—

This decrease in the number of servi seems to be pretty evenly distributed throughout the county[99]. We shall not readily ascribe the change to any mildheartedness of the lords. They are Frenchmen, and in all probability they have got the most they could out of a mass of peasantry made malleable and manageable by the Conquest. We may rather be entitled to infer that there has been a considerable change in rural economy. For the cultivation of his demesne land the lord begins to rely less and less on the labour of serfs whom he feeds, more and more upon the labour of tenants who have plots of their own and who feed themselves. From this again we may perhaps infer that the labour services of the villani and bordarii are being augmented. But at any rate it speaks ill of their fate, that under the sway of foreigners, who may fairly be suspected of some harshness and greed, their inferiors, the true servi, are somewhat rapidly disappearing. However, it is by no means impossible that with a slavery so complete as that of the English theów the Normans were not very familiar in their own country[100].

§ 3. The Villeins.

The boors or coliberts.

Next above the servi we see the small but interesting class of buri, burs or coliberti. Probably it was not mentioned in the writ which set the commissioners their task, and this may well be the reason why it appears as but a very small class. It has some 900 members; still it is represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset, Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester, Hereford, Warwick, Shropshire—in short, in the shires of Wessex and western Mercia. Twice over our record explains—a piece of rare good fortune—that buri and coliberti are all one[101]. In general they are presented to us as being akin rather to the servi than to the villani or bordarii, as when we are told, ‘In demesne there is one virgate of land and there are 3 teams and 11 servi and 5 coliberti, and there are 15 villani and 15 bordarii with 8 teams[102].’ But this rule is by no means unbroken; sometimes the coliberti are separated from the servi and a precedence over the cotarii or even over the bordarii is given them. Thus of a Wiltshire manor it is written, ‘In demesne there are 8 teams and 20 servi and 41 villani and 30 bordarii and 7 coliberti and 74 cotarii have among them all 27 teams[103].’ Again of a Warwickshire manor, ‘There is land for 26 teams; in demesne are 3 teams and 4 servi and 43 villani and 6 coliberti and 10 bordarii with 16 teams[104].’ A classification which turns upon legal status is cut by a classification which turns upon economic condition. The colibertus we take to be an unfreer man (how there come to be degrees of freedom is a question to be asked by and by) than the cotarius or the bordarius, but on a given manor he may be a more important person, for he may have plough beasts while the cotarius has none, he may have two oxen while the bordarius has but an ox.

The Continental colibert.

The English boor.

In calling him a colibertus the Norman clerks are giving him a foreign name, the etymological origin of which is very dark[105]; but this much seems plain, that in the France of the eleventh century a large class bearing this name had been formed out of ancient elements, Roman coloni and Germanic liti, a class which was not rightless (for it could be distinguished from the class of servi, and a colibertus might be made a servus by way of punishment for his crimes) but which yet was unfree, for the colibertus who left his lord might be pursued and recaptured[106]. As to the Englishman upon whom this name is bestowed we know him to be a gebúr, a boor, and we learn something of him from that mysterious document entitled ‘Rectitudines Singularum Personarum[107].’ His services, we are told, vary from place to place; in some districts he works for his lord two days a week and during harvest-time three days a week; he pays gafol in money, barley, sheep and poultry; also he has ploughing to do besides his week-work; he pays hearth-penny; he and one of his fellows must between them feed a dog. It is usual to provide him with an outfit of two oxen, one cow, six sheep, and seed for seven acres of his yardland, and also to provide him with household stuff; on his death all these chattels go back to his lord. Thus the boor is put before us as a tenant with a house and a yardland or virgate, and two plough oxen. He will therefore play a more important part in the manorial economy than the cottager who has no beasts. But he is a very dependent person; his beasts, even the poor furniture of his house, his pots and crocks, are provided for him by his lord. Probably it is this that marks him off from the ordinary villanus or ‘townsman,’ and brings him near the serf. In a sense he may be a free man. We have seen how the law, whether we look for it to the code of Cnut or to theLeges Henrici, is holding fast the proposition that every one who is not a theówman is a free man, that every one is either a liber homo or a servus. We have no warrant for denying to the boor the full wergild of 200 shillings. He pays the hearth-penny, or Peter’s penny, and the document that tells us this elsewhere mentions this payment as the mark of a free man[108]. And yet in a very true and accurate sense he may be unfree, unfree to quit his lord’s service. All that he has belongs to his lord; he must be perpetually in debt to his lord; he could hardly leave his lord without being guilty of something very like theft, an abstraction of chattels committed to his charge. Very probably if he flies, his lord has a right to recapture him. On the other hand, so dependent a man will be in a very strict sense a tenant at will. When he dies not only his tenement but his stock will belong to the lord; like the French colibert he is mainmortable. At the same time, to one familiar with the cartularies of the thirteenth century the rents and services that this boor has to pay and perform for his virgate will not appear enormous. If we mistake not, many a villanus of Henry III.’s day would have thought them light. Of course any such comparison is beset by difficulties, for at present we know all too little of the history of wages and prices. Nevertheless the intermediation of this class of buri or coliberti between the serfs and the villeins of Domesday Book must tend to raise our estimate both of the legal freedom and of the economic welfare of that great mass of peasants which is now to come before us[109].

Villani, bordarii, cotarii.

That great mass consists of some 108,500 villani, some 82,600 bordarii, and some 6,800 cotarii and coscets[110]. Though in manor after manor we may find representatives of each of these three classes, we can see that for some important purpose they form but one grand class, and that the term villanus may be used to cover the whole genus as well as to designate one of its three species. In the Exon Domesday a common formula, having stated the number of hides in the manor and the number of teams for which it can find work, proceeds to divide the land and the existing teams between the demesne and the villani—the villani, it will say, have so many hides and so many teams. Then it will state how many villani, bordarii, cotarii there are. But it will sometimes fall out that there are no villani if that term is to be used in its specific sense, and so, after having been told that the villani have so much land and so many teams, we learn that the only villani on this manor are bordarii[111]. The lines which divide the three species are, we may be sure, much rather economic than legal lines. Of course the law may recognise them upon occasion[112], but we can not say that the bordarius has a different status from that of the villanus. In the Leges both fall under the term villani; indeed, as hereafter will be seen, that term has sometimes to cover all men who are not servi but are not noble. Nor must we suppose that the economic lines are drawn with much precision or according to any one uniform pattern. Of villani and bordarii we may read in every county; cotarii or coscets in considerable numbers are found only in Kent, Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire, Hertford and Cambridge, though they are not absolutely unknown in Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We can not tell how the English jurors would have expressed the distinction between bordarii and cotarii, for while the cot is English, the borde is French. If we are entitled to draw any inference from the distribution of the cottiers, it would be that the smallest of small tenements were to be found chiefly along the southern shore; but then there are no cotarii in Hampshire, plenty in Sussex, Surrey, Wiltshire and Dorset. Again, in the two shires last mentioned some distinction seems to be taken between the coscets and the cotarii, the former being superior to the latter[113]. Two centuries later we find a similar distinction among the tenants of Worcester Priory. There are cotmanni whose rents and services are heavier, and whose tenements are presumably larger than those of the cotarii, though the difference is not very great[114].

Size of the villain’s tenement.

The vagueness of distinctions such as these is well illustrated by the failure of the term bordarius (and none is more prominent in Domesday Book) to take firm root in this country[115]. The successors of the bordarii seem to become in the later documents either villani with small or cottiers with large tenements. Distinctions which turn on the amount of land that is possessed or the amount of service that is done cannot be accurately formulated and forced upon a whole country. Perhaps in general we may endow the villanus of Domesday Book with a virgate or quarter of a hide, while we ascribe to the bordarius a less quantity and doubt whether the cotarius usually had arable land. But the survey of Middlesex, which is the main authority touching this matter, shows that the villanus may on occasion have a whole hide[116], that is four virgates, and that often he has but half a virgate; it shows us that the bordarius, though often he has but four or five acres, may have a half virgate, that is as much as many a villanus[117]; it shows us that the cotarius may have five acres, that is as much as many a bordarius[118], though he will often have no more than a croft[119]. In Essex we hear of bordarii who held no arable land[120]. Nor dare we lay down any stern rule about the possession of plough beasts. It would seem as if sometimes the bordarius had oxen, while sometimes he had none[121]. The villanus might have two oxen, but he might have more or less. We may find that in Cornwall a single team of eight is forthcoming where there are[122]

In some Gloucestershire manors every villein seems to have a full plough team[123]. Merely economic grades are essentially indefinite. Who could have defined a ‘cottage’ in the eleventh century? Who can define one now[124]?

Villeins and cottiers.

In truth the vast class of men that we are examining must have been heterogeneous to a high degree. Not only were some members of it much wealthier than others, but in all probability some were economically subject to others. So it was in later days. In the thirteenth century we may easily find a manor in which the lord is paying hardly any wages. He gets nearly all his agricultural work done for him by his villeins and his cottiers. Out of his cottiers however he will get but one day’s work in the week. If then we ask what the cottiers are doing during the rest of their time, the answer surely must be that they are often working as hired labourers on the villein’s virgates, for a cottier can not have spent five days in the week over the tillage of his poor little tenement. It is a remarkable feature of the manorial arrangement that the meanest of the lord’s nativi are but rarely working for him. Thus if we were to remove the lord in order that the village community might be revealed, we should still see not only rich and poor, but employers and employed, villagers and ‘undersettles.’

Freedom and unfreedom of villani.

Now all these people are in a sense unfree, while yet in some other sense they are free. Let us then spend a short while in discussing the various meanings that freedom may have in a legal classification of the sorts and conditions of men. When we have put out of account the rightless slave, who is a thing, it still remains possible to say that some men are unfree, while others are free, and even that freedom is a matter of degree. But we may use various standards for the measurement of liberty.

Meaning of freedom.

Perhaps in the first place we shall think of what German writers call Freizügigkeit, the power to leave the master whom one has been serving. This power our ancestors would perhaps have called ‘fare-worthiness[125].’ If the master has the right to recapture the servant who leaves his service, or even if he has the right to call upon the officers of the state to pursue him and bring him back to his work, then we may account this servant an unfree man, albeit the relation between him and his master has been created by free contract. Such unfreedom is very distinct from rightlessness. As a freak of jurisprudence we might imagine a modern nobleman entitled to reduce by force and arms his fugitive butler to well-paid and easy duties, while all the same that butler had rights against all the world including his master, had access to all courts, and could even sue for his wages if they were not punctually paid. If we call him unfree, then freedom will look like a matter of degree, for the master’s power to get back his fugitive may be defined by law in divers manners. May he go in pursuit and use force? Must he send a constable or sheriff’s officer? Must he first go to court and obtain a judgment, ‘a decree for specific performance’ of the contract of service? The right of recapture seems to shade off gradually into a right to insist that a breach of the contract of service is a criminal offence to be punished by fine or imprisonment. Then, again, there may seem to us to be more of unfreedom in the case of one who was born a servant than in the case of one who has contracted to serve, though we should note that one may be born to serve without being born rightless. More to the point than these obvious reflections will be the remark that in the thirteenth century we learn to think of various spheres or planes of justice. A right good in one sphere may have no existence in another. The rights of the villeins in their tenements are sanctioned by manorial justice; they are ignored by the king’s courts. Here, again, the ideas of freedom and unfreedom find a part to play. True that in the order of legal logic freedom may precede royal protection; a tenure is protected because it is free; still men are soon arguing that it is free because it is protected, and this probably discloses an idea which lies deep[126]:—the king’s courts, the national courts, are open to the free; we approach the rightlessness of the slave if our rights are recognized only in a court of which our lord is the president.

The thirteenth century will also supply us with the notion that continuous agricultural service, service in which there is a considerable element of uncertainty, is unfree service. Where from day to day the lord’s will counts for much in determining the work that his tenants must do, such tenants, even if they be free men, are not holding freely. But uncertainty is a matter of degree, and therefore unfreedom may easily be regarded as a matter of degree[127].

Then, again, in the law books of the Norman age we see distinct traces of a usage which would make liber or liberalis an equivalent for our noble, or at least for our gentle. The common man with the wergild of 200 shillings, though indubitably he is no servus, is not liberalis homo[128].

Lastly, in our thirteenth century we learn that privileges and exceptional immunities are ‘liberties’ and ‘franchises.’ What is our definition of a liberty, a franchise? A portion of royal power in the hands of a subject. In Henry III.’s day we do not say that the Earl of Chester is a freer man, more of a liber homo, than is the Earl of Gloucester, but we do say that he has more, greater, higher liberties.

Therefore we shall not be surprised if in Domesday Book what we read of freedom, of free men, of free land is sadly obscure. Let us then observe that the villanus both is and is not a free man.

The villein as free.

According to the usual terminology of the Leges, everyone who is above the rank of a servus, but below the rank of a thegn, is a villanus. The villanus is the non-noble liber homo. All those numerous sokemen of the eastern counties whom Domesday ranks above the villani, all those numerous liberi homines whom it ranks above the sokemen, are, according to this scheme, villani if they be not thegns. And this scheme is still of great importance, for it is the scheme of bót and wer. By what have been the most vital of all the rules of law, all these men have been massed together; each of them has a wer of two hundred shillings[129]. This, we may remark in passing, is no trivial sum, though the shillings are the small Saxon shillings of four pence or five pence. There seems to be a good deal of evidence that for a long time past the ox had been valued at 30 pence, the sheep at 5 pence[130]. At this rate the ceorl’s death must be paid for by the price of some twenty-four or thirty oxen. The sons of a villanus who had but two oxen must have been under some temptation to wish that their father would get himself killed by a solvent thegn. Very rarely indeed do the Leges notice the sokeman or mention liberi homines so as to exclude the villani from the scope of that term[131]. Domesday Book also on occasion can divide mankind into slaves and free men. It does so when it tells us that on a Gloucestershire manor there were twelve servi whom the lord had made free[132]. It does so again when it tells us that in the city of Chester the bishop had eight shillings if a free man, four shillings if a serf, did work upon a festival[133]. So in a description of the manor of South Perrott in Somerset we read that a certain custom is due to it from the manor of ‘Cruche’ (Crewkerne), namely, that every free man must render one bloom of iron. We look for these free men at ‘Cruche’ and see no one on the manor but villani, bordarii, coliberti and servi[134]. Of the Count of Mortain’s manor of Bickenhall it is written that every free man renders a bloom of iron at the king’s manor of Curry; but at Bickenhall there is no one above the condition of a villanus[135]. Other passages will suggest that the villanus sometimes is and sometimes is not liber homo. On a Norfolk manor we find free villeins, liberi villani[136]

The villein as unfree.

For all this, however, there must be some very important sense in which the villanus is not free. In the survey of the eastern counties he is separated from the liberi homines by the whole class of sochemanni. ‘In this manor,’ we are told, ‘there was at that time a free man with half a hide who has now been made one of the villeins[137].’ At times the word francus is introduced so as to suggest for a moment that, though the villein may be liber homo, he is not francus[138]. But this suggestion, even if it be made, is not maintained, and there are hundreds of passages which implicitly deny that the villein is liber homo. But then these passages draw the line between freedom and unfreedom at a point high in the legal scale, a point far above the heads of the villani. At least for the main purposes of Domesday Book the free man is a man who holds land freely. Let us observe what is said of the men who have been holding manors. The formula will vary somewhat from county to county, but we shall often find four phrases used as equivalent, ‘X tenuit et liber homo fuit,’ ‘X tenuit ut liber homo,’ ‘X tenuit et cum terra sua liber fuit,’ ‘X tenuit libere[139].’ But this freeholding implies a high degree of freedom, freedom of a kind that would have shocked the lawyers of a later age.

Anglo-Saxon ‘freeholding.’

With some regrets we must leave the peasants for a while in order that we may glance at the higher strata of society. We may take it as certain that, at least in the eyes of William’s ministers, the ordinary holder of a manor in the time of the Confessor had been holding it under (sub) some lord, if not of (de) some lord. But then the closeness of the connexion between him and his lord, the character of the relation between lord, man and land, had varied much from case to case. Now these matters are often expressed in terms of a calculus of personal freedom. But let us begin with some phrases which seem intelligible enough. The man can, or he can not, ‘sell or give his land’; he can, or he can not, ‘sell or give it without the licence of his lord’; he can sell it if he has first offered it to his lord[140]; he can sell it on paying his lord two shillings[141]. This seems very simple:—the lord can, or (as the case may be) can not, prevent his tenant from alienating the land; he has a right of preemption or he has a right to exact a fine when there is a change of tenants. But then come phrases that are less in harmony with our idea of feudal tenure. The man can not sell his land ‘away from’ his lord[142], he can not give or sell it ‘outside’ a certain manor belonging to his lord[143], or, being the tenant of some church, he can not ‘separate’ his land from the church[144], or give or sell it outside the church[145]

Freeholding and the lord’s rights.

We have perhaps taken for granted under the influence of later law that an alienation will not impair the lord’s rights, and will but give him a new instead of an old tenant. But it is not of any mere substitution such as this that these men of the eleventh century are thinking. They have it in their minds that the man may wish, may be able, utterly to withdraw his land from the sphere of his lord’s rights. Therefore in many cases they note with some care that the man, though he can give or sell his land, can not altogether put an end to such relation as has existed between this land and his lord. He can sell, but some of the lord’s rights will ‘remain,’ in particular the lord’s ‘soke’ over the land (for the present let us say his jurisdiction over the land) will remain[146]. The purchaser will not of necessity become the ‘man’ of this lord, will not of necessity owe him any servitium or consuetudo, but will come under his jurisdiction[147]. Interchanging however with these phrases[148], we have others which seem to point to the same set of distinctions, but to express them in terms of personal freedom. The man can, or else he can not, withdraw from his lord, go away from his lord, withdraw from his lord’s manor; he can or he can not withdraw with his land; he can or can not go to another lord, or go wherever he pleases[149]. Some of these phrases will, if taken literally, seem to say that the persons of whom they are used are tied to the soil; they can not leave the land, or the manor, or the soke. Probably in some of these cases the bond between man and lord is a perpetual bond of homage and fealty, and if the man breaks that bond by refusing the due obedience or putting himself under another lord, he is guilty of a wrong[150]. But of pursuing him and capturing him and reducing him to servitude there can be no talk. Many of these persons who ‘can not recede’ are men of wealth and rank, of high rank that is recognized by law, they are king’s thegns or the thegns of the churches, they are ‘twelve-hundred men[151].’ However, it is not the man’s power to leave his lord so much as the power to leave his lord and take his land with him, that these phrases bring to our notice; or rather the assumption is made that no one will want to leave his lord if he must also leave his land behind him. And then this power of taking land from this lord and bringing it under another lord is conceived as an index of personal freedom. Thus we read: ‘These men were so free that they could go where they pleased[152],’ and again, ‘Four sokemen held this land, of whom three were free, while the fourth held one hide but could not give or sell it[153].’ Not that no one is called a liber homo unless he has this power of ‘receding’ from his lord; far from it; all is a matter of degree; but the free man is freer if he can ‘go to what lord he pleases,’ and often enough the phrases ‘X tenuit et liber homo fuit,’ ‘X tenuit libere,’ ‘X tenuit ut liber homo’ seem to have no other meaning than this, that the occupant of the land enjoyed the liberty of taking it with him whithersoever he would. Therefore there is no tautology in saying that the holder of the land was a thegn and a free man, though of course there is a sense, there are many senses, in which every thegn is free[154]. All this talk of the freedom that consists in choosing a lord and subjecting land to him may well puzzle us, for it puzzled the men of the twelfth century. The chronicler of Abingdon abbey had to explain that in the old days a free man could do strange things[155]

The scale of freeholding.

Comparisons may be instituted between the freedom of one free man and that of another:—‘Five thegns held this land of Earl Edwin and could go with their land whither they would, and below them they had four soldiers, who were as free as themselves[156].’ A high degree of liberty is marked when we are told that, ‘The said men were so free that they could sell their land with soke and sake wherever they would[157].’ But there are yet higher degrees of liberty. Of Worcestershire it is written, ‘When the king goes upon a military expedition, if anyone who is summoned stays at home, then if he is so free a man that he has his sake and soke and can go whither he pleases with his land, he with all his land shall be in the king’s mercy[158].’ The free man is the freer if he has soke and sake, if he has jurisdiction over other men. Exceptional privileges, immunities from common burdens, are already regarded as ‘liberties.’ This is no new thing; often enough when the Anglo-Saxon land books speak of freedom they mean privilege.

Free land.

The idea of freedom is equally vague and elastic if, instead of applying it to men, we apply it to land or the tenure of land. Two bordarii are now holding a small plot; ‘they themselves held it freely in King Edward’s day[159].’ Here no doubt there has been a fall; but how deep a fall we can not be sure. To say that a man’s land is free may imply far more freedom than freehold tenure implies in later times; it may imply that the bond between him and his lord, if indeed he has a lord, is of a purely personal character and hardly gives the lord any hold over the land[160]. But this is not all. Perfect freedom is not attained so long as the land owes any single duty to the state. Often enough—but exactly how often it were no easy task to tell—the libera terra of our record is land that has been exempted even from the danegeld; it is highly privileged land[161]. Let us remember that at the present day, though the definition of free land or freehold land has long ago been fixed, we still speak as though free land might become freer if it were ‘free of land-tax and tithe rent-charge.’

The unfreedom of the villein.

If now we return to the villanus and deny that he is liber homo and deny also that he is holding freely, we shall be saying little and using the laxest of terms. There are half-a-dozen questions that we would fain ask about him, and there will be no harm in asking them, though Domesday Book is taciturn.

Can the villein be pursued?

Is he free to quit his lord and his land, or can he be pursued and captured? No one word can be obtained in answer to this question. We can only say that in Henry II.’s day the ordinary peasant was regarded by the royal officials as ascriptitius; the land that he occupied was said to be part of his lord’s demesne; his chattels were his lord’s[162]. But then this was conceived to be, at least in some degree, the result of the Norman Conquest and subsequent rebellions of the peasantry[163]. To this we may add that in one of our sets of Leges, the French Leis of William the Conqueror, there are certain clauses which would be of great importance could we suppose that they had an authoritative origin, and which in any case are remarkable enough. The nativus who flies from the land on which he is born, let none retain him or his chattels; if the lords will not send back these men to their land the king’s officers are to do it[164]. On the other hand, the tillers of the soil are not to be worked beyond their proper rent; their lord may not remove them from their land so long as they perform their right services[165]. Whether or no we suppose that in the writer’s opinion the ordinary peasant was a nativus (of nativi Domesday Book has nothing to say) we still have law more favourable to the peasant than was the common law of Bracton’s age:—a tiller who does his accustomed service is not to be ejected; he is no tenant at will.

Rarity of flight.

Hereafter we shall show that the English peasants did suffer by the substitution of French for English lords. But the question that we have asked, so urgent, so fundamental, as it may seem to us, is really one which, as the history of the Roman coloni might prove, can long remain unanswered. Men may become economically so dependent on their lords, on wealthy masters and creditors, that the legal question whether they can quit their service has no interest. Who wishes to leave his all and go forth a beggar into the world? On the whole we can find no evidence whatever that the men of the Confessor’s day who were retrospectively called villani were tied to the soil. Certainly in Norman times the tradition was held that according to the old law the villanus might acquire five hides of land and so ‘thrive to thegn-right[166].’

The villein and seignorial justice.

Our next question should be whether he was subject to seignorial justice. This is part of a much wider question that we must face hereafter, for seignorial justice should be treated as a whole. We must here anticipate a conclusion, the proof of which will come by and by, namely, that the villanus sometimes was and sometimes was not the justiciable of a court in which his lord or his lord’s steward presided. All depended on the answer to the question whether his lord had ‘sake and soke.’ His lord might have justiciary rights over all his tenants, or merely over his villani, or he might have no justiciary rights, for as yet ‘sake and soke’ were in the king’s gift, and the mere fact that a lord had ‘men’ or tenants did not give him a jurisdiction over them.

The villein and national justice.

With this question is connected another, namely, whether the villani had a locus standi in the national courts. We have seen six villani together with the priest (undoubtedly a free man) and the reeve of each vill summoned to swear in the great inquest[167]. One of the most famous scenes recorded by our book is that in which William of Chernet claimed a Hampshire manor on behalf of Hugh de Port and produced his witnesses from among the best and eldest men of the county; but Picot, the sheriff of Cambridgeshire, who was in possession, replied with the testimony of villeins and mean folk and reeves, who were willing to support his case by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed a hundred acres and five villani and a mill as belonging to the royal manor of Branfort, and five villani of the said manor testified in his favour and offered to make whatever proof anyone might adjudge to them, but the half-hundred of Ipswich testified that the land belonged to a certain church of S^t. Peter that Wihtgar held, and he offered to deraign this[169]. Certainly this does not look as if villani were excluded from the national moots. But a rule which valued the oath of a single thegn as highly as the oath of six ceorls would make the ceorl but a poor witness and tend to keep him out of court[170]. The men who are active in the communal courts, who make the judgments there, are usually men of thegnly rank; but to go to court as a doomsman is one thing, to go as a litigant is another[171].

The villein and his land.

We may now approach the question whether, and if so in what sense, the land that the villanus occupies is his land. Throughout Domesday Book a distinction is sedulously maintained between the land of the villeins (terra villanorum) and the land that the lord has in dominio. Let us notice this phrase. Only the demesne land does the lord hold in dominio, in ownership. The delicate shade of difference that Bracton would see between dominicum and dominium is not as yet marked. In later times it became strictly correct to say that the lord held in demesne (in dominico suo) not only the lands which he occupied by himself or his servants, but also the lands held of him by villein tenure[172]. This usage appears very plainly in the Dialogue on the Exchequer. ‘You shall know,’ says the writer, ‘that we give the name demesnes (dominica) to those lands that a man cultivates at his own cost or by his own labour, and also to those which are possessed in his name by his ascriptitii; for by the law of this kingdom not only can these ascriptitii be removed by their lords from the lands that they now possess and transferred to other places, but they may be sold and dispersed at will; so that rightly are both they and the lands which they cultivate for the behalf of their lords accounted to be dominia[173].’ Far other is the normal, if not invariable, usage of Domesday Book. The terrae villanorum, the silvae villanorum, the piscariae villanorum, the molini villanorum—for the villeins have woods and fisheries and mills—these the lord does not hold in dominio[174]. Then again the oxen of the villeins are carefully distinguished from the oxen of the demesne, while often enough they are not distinguished from the oxen of those who in every sense are free tenants[175]. Now as regards both the land and the oxen we seem put to the dilemma that either they belong to the lord or else they belong to the villeins. We cannot avoid this dilemma, as we can in later days, by saying that according to the common law the ownership of these things is with the lord, while according to the custom of the manor it is with the villeins, for we believe that a hall-moot, a manorial court, is still a somewhat exceptional institution.

On the whole we can hardly doubt that both in their land and in their oxen the villeins have had rights protected by law. Let us glance once more at the scheme of bót and wer that has been in force. A villein is slain; the manbót payable to his lord is marked off from the much heavier wergild that is payable to his kindred. If all that a villein could have belonged to his lord such a distinction would be idle.

The villein’s land and the geld.

Still we take it that for one most important purpose the villein’s land is the lord’s land:—the lord must answer for the geld that is due from it. Not that the burden falls ultimately on the lord. On the contrary, it is not unlikely that he makes his villeins pay the geld that is due from his demesne land; it is one of their services that they must ‘defend their lord’s inland’ against the geld. But over against the state the lord represents as well the land of his villeins as his own demesne land. From the great levy of 1084 the demesne lands of the barons had been exempted[176], but no doubt they had been responsible for the tax assessed on the lands held by their villani. We much doubt whether the collectors of the geld went round to the cottages of the villeins and demanded here six pence and there four pence; they presented themselves at the lord’s hall and asked for a large sum. Nay, we believe that very often a perfectly free tenant paid his geld to his lord, or through his lord[177]. Hence arrangements by which some hides were made to acquit other hides; such, for example, was the arrangement at Tewkesbury; there were fifty hides which had to acquit the whole ninety-five hides from all geld and royal service[178]. And then it might be that the lord, enjoying a special privilege, was entitled to take the geld from his tenants and yet paid no geld to the king; thus did the canons of S^t. Petroc in Cornwall[179] and the monks of S^t. Edmund in Suffolk[180]. But as regards lands occupied by villeins, the king, so it seems to us, looks for his geld to the lord and he does not look behind the lord. This is no detail of a fiscal system. A potent force has thus been set in motion. He who pays for land,—it is but fair that he should be considered the owner of that land. We have a hint of this principle in a law of Cnut:—‘He who has “defended” land with the witness of the shire, is to enjoy it without question during his life and on his death may give or sell it to whom he pleases[181].’ We have another hint of this principle in a story told by Heming, the monk of Worcester:—in Cnut’s time but four days of grace were given to the landowner for the payment of the geld; when these had elapsed, anyone who paid the geld might have the land[182]. It is a principle which, if it is applied to the case of lord and villein, will attribute the ownership of the land to the lord and not to the villein.

The villein’s services.

And then we would ask: What services do the villeins render? A deep silence answers us, and as will hereafter be shown, there are many reasons why we should not import the information given us by the monastic cartularies, even such early cartularies as the Black Book of Peterborough, into the days of the Confessor. No doubt the villeins usually do some labour upon the lord’s demesne lands. In particular they help to plough it. A manor, we can see, is generally so arranged that the ratio borne by the demesne oxen to the demesne land will be smaller than that borne by the villeins’ oxen to the villeins’ land. Thus, to give one example out of a hundred, in a Somersetshire manor the lord has four hides and three teams, the villeins have two hides and three teams[183]. But then the lord gets some help in his agriculture from those who are undoubtedly free tenants. The teams of the free tenants are often covered by the same phrase that covers the teams of the villeins[184]. Radknights who are liberi homines plough and harrow at the lord’s court[185]. The very few entries which tell us of the labour of the villeins are quite insufficient to condemn the whole class to unlimited, or even to very heavy work. On a manor in Herefordshire there are twelve bordiers who work one day in the week[186]. On the enormous manor of Leominster there are 238 villani and 85 bordarii. The villani plough and sow with their own seed 140 acres of their lord’s land and they pay 11 pounds and 52 pence[187]. On the manor of Marcle, which also is in Herefordshire, there are 36 villani and 10 bordarii with 40 teams. These villani plough and sow with their own seed 80 acres of wheat and 71 of oats[188]. At Kingston, yet another manor in the same county, ‘the villani who dwelt there in King Edward’s day carried venison to Hereford and did no other service, so says the shire[189].’ On one Worcestershire manor of Westminster Abbey 10 villeins and 10 bordiers with 6 teams plough 6 acres and sow them with their own seed; on another 8 villeins and 6 bordiers with 6 teams do the like by 4 acres[190]. This is light work. Casually we are told of burgesses living at Tamworth who have to work like the other villeins of the manor of Drayton to which they are attached[191], and we are told of men on a royal manor who do such works for the king as the reeve may command[192]; but, curiously enough, it is not of any villeins but of the Bishop of Worcester’s riding men (radmanni) that it is written ‘they do whatever is commanded them[193].’

Money rents paid by villeins.

With our thirteenth century cartularies before us, we might easily underrate the amount of money that was already being paid as the rent of land at the date of the Conquest. In several counties we come across small groups of censarii, censores, gablatores who pay for their land in money, of cervisarii and mellitarii who bring beer and honey. Renders in kind, in herrings, eels, salmon are not uncommon, and sometimes they are ‘appreciated,’ valued in terms of money. The pannage pig or the grass swine, which the villeins give in return for mast and herbage, is often mentioned. Throughout Sussex it seems to be the custom that the lord should have ‘for herbage’ one pig from every villein who has seven pigs[194]. But money will be taken instead of swine, oxen or fish[195]. The gersuma, the tailla, the theoretically free gifts of the tenants, are sums of money. But often enough the villanus is paying a substantial money rent. We have seen how at Leominster villeins plough and sow 140 acres for their lord and pay a rent of more than £11[196]. At Lewisham in Kent the Abbot of Gand has a manor valued at £30; of this £2 is due to the profits of the port while two mills with ‘the gafol of the rustics’ bring in £8. 12s.[197] Such entries as the following are not uncommon—there is one villein rendering 30d.[198]—there is one villein rendering 10s.[199]—46 cotarii with one hide render 30 shillings a year[200]—the villeins give 13s. 4d. by way of consuetudo[201]. No doubt it would be somewhat rare to find a villein discharging all his dues in money—this is suggested when we are told how on the land of S^t. Augustin one Wadard holds a large piece ‘de terra villanorum’ and yet renders no service to the abbot save 30s. a year[202]. At least in one instance the villeins seem to be holding the manor in farm, that is to say, they are farming the demesne land and paying a rent in money or in provender[203]. We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour services to a system of rents. We must remember that in the Conqueror’s reign the lord very often had numerous serfs whose whole time was given to the cultivation of his demesne. In the south-western counties he will often have two, three or more serfs for every team that he has on his demesne, and, while this is so, we can not safely say that his husbandry requires that the villeins should be labouring on his land for three or four days in every week.

The English for villanus.

As a last question we may ask: What was the English for villanus? It is a foreign word, one of those words which came in with the Conqueror. Surely, we may argue, there must have been some English equivalent for it. Yet we have the greatest difficulty in finding the proper term. True that in the Quadripartitus and the Leges villanus generally represents ceorl; ceorl when it is not rendered by villanus is left untranslated in some such form as cyrliscus homo. But then ceorl must be a wider word than the villanus of Domesday Book, for it has to cover all the non-noble free men; it must comprehend the numerous sochemanni and liberi homines of northern and eastern England. This in itself is not a little remarkable; it makes us suspect that some of the lines drawn by Domesday Book are by no means very old; they can not be drawn by any of those terms that have been current in the Anglo-Saxon dooms or which still are current in the text-books that lawyers are compiling. To suppose that villanus is equivalent to gebúr is impossible; we have the best warrant for saying that the Latin for gebúr is not villanus but colibertus[204]. Nor can we hold that the villanus is a geneat. In the last days of the old English kingdom the geneat, the ‘companion,’ the ‘fellow,’ appears as a horseman who rides on his lord’s errands; we must seek him among the radmanni and rachenistres and drengi of Domesday Book[205]. We shall venture the guess that when the Norman clerks wrote down villanus, the English jurors had said túnesman. As a matter of etymology the two words answer to each other well enough; the villa is the tún, and the men of the villa are the men of the tún. In the enlarged Latin version of the laws of Cnut, known as Instituta Cnuti, there is an important remark:—tithes are to be paid both from the lands of the thegn and from the lands of the villeins—‘tam de dominio liberalis hominis, id est þegenes, quam de terra villanorum, id est tuumannes (corr. tunmannes)[206].’ Then in a collection of dooms known as the Northumbrian Priests’ Law there is a clause which orders the payment of Peter’s pence. If a king’s thegn or landlord (landrica) withholds his penny, he must pay ten half-marks, half to Christ, half to the king; but if a túnesman withholds it, then let the landlord pay it and take an ox from the man[207]. A very valuable passage this is. It shows us how the lord is becoming responsible for the man’s taxes: if the tenant will not pay them, the lord must. It is then in connexion with this responsibility of the lord that the term townsman meets us, and, if we mistake not, it is the lord’s responsibility for geld that is the chief agent in the definition of the class of villani. The pressure of taxation, civil and ecclesiastical, has been forming new social strata, and a new word, in itself a vague word, is making its way into the vocabulary of the law[208].

Summary.

The class of villeins may well be heterogeneous. It may well contain (so we think) men who, or whose ancestors, have owned the land under a political supremacy, not easily to be distinguished from landlordship, that belongs to the king; and, on the other hand, it may well contain those who have never in themselves or their predecessors been other than the tenants of another man’s soil. In some counties on the Welsh march there are groups of hospites who in fact or theory are colonists whom the lord has invited onto his land[209]; but this word, very common in France, is not common in England. Our record is not concerned to describe the nature or the origin of the villein’s tenure; it is in quest of geld and of the persons who ought to be charged with geld, and so it matters not whether the lord has let land to the villein or has acquired rights over land of which the villein was once the owner. Therefore we lay down no broad principle about the rights of the villein, but we have suggested that taken in the mass the villani of the Confessor’s reign were far more ‘law-worthy’ than were the villani of the thirteenth century. We can not treat either the legal or the economic history of our peasantry as a continuous whole; it is divided into two parts by the red thread of the Norman Conquest. That is a catastrophe. William might do his best to make it as little of a catastrophe as was possible, to insist that each French lord should have precisely the same rights that had been enjoyed by his English antecessor; it may even be that he endeavoured to assure to those who were becoming villani the rights that they had enjoyed under King Edward[210]. Such a task, if attempted, was impossible. We hear indeed that the English ‘redeemed their lands,’ but probably this refers only to those English lords, those thegns or the like, who were fortunate enough to find that a ransom would be accepted[211]. We have no warrant for thinking that the peasants, the common ‘townsmen,’ obtained from the king any covenanted mercies. They were handed over to new lords, who were very free in fact, if not in theory, to get out of them all that could be got without gross cruelty.

Depression of the villeins.

We are not left to speculate about this matter. In after days those who were likely to hold a true tradition, the great financier of the twelfth, the great lawyer of the thirteenth century, believed that there had been a catastrophe. As a result of the Conquest, the peasants, at all events some of the peasants, had fallen from their free estate; free men, holding freely, they had been compelled to do unfree services[212]. But if we need not rely upon speculation, neither need we rely upon tradition. Domesday Book is full of evidence that the tillers of the soil are being depressed.

The Normans and the peasants.

Here we may read of a free man with half a hide who has now been made one of the villeins[213], there of the holder of a small manor who now cultivates it as the farmer of a French lord graviter et miserabiliter[214], and there of a sokeman who has lost his land for not paying geld, though none was due[215]; while the great Richard of Tonbridge has condescended to abstract a virgate from a villein or a villein from a virgate[216]. But, again, it is not on a few cases in which our record states that some man has suffered an injustice that we would rely. Rather we notice what it treats as a quite common event. Free men are being ‘added to’ manors to which they did not belong. Thus in Suffolk a number of free men have been added to the manor of Montfort; they pay no ‘custom’ to it before the Conquest, but now they pay £15; Ælfric who was reeve under Roger Bigot set them this custom[217]. Hard by them were men who used to pay 20 shillings, but this same Ælfric raised their rent to 100 shillings[218]. ‘A free man held this land and could sell it, but Waleran father of John has added him to this manor[219]’:—Entries of this kind are common. The utmost rents are being exacted from the farmers:—this manor was let for three years at a rent of £12 and a yearly gift of an ounce of gold, but all the farmers who took it were ruined[220]—that manor was let for £3. 15s. but the men were thereby ruined and now it is valued at only 45s.[221] About these matters French and English can not agree:—this manor renders £70 by weight, but the English value it at only £60 by tale[222]—the English fix the value at £80, but the French at £100[223]—Frenchmen and Englishmen agree that it is worth £50, but Richard let it to an Englishman for £60, who thereby lost £10 a year, at the very least[224]. ‘It can not pay,’ ‘it can hardly pay,’ ‘it could not stand’ the rent, such are the phrases that we hear. If the lord gets the most out of the farmer to whom he has leased the manor, we may be sure that the farmer is making the most out of the villeins.

Depression of the sokemen.

But the most convincing proof of the depression of the peasantry comes to us from Cambridgeshire. The rural population of that county as it existed in 1086 has been classified thus[225]:—

But we also learn that the Cambridgeshire of the Confessor’s day had contained at the very least 900 instead of 200 sokemen[226]. This is an enormous and a significant change. Let us look at a single village. In Meldreth there is a manor; it is now a manor of the most ordinary kind; it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in demesne are half a hide and one team, and 15 bordarii and 3 cotarii have 4 teams, and there is one servus. But before the Conquest this land was held by 15 sokemen; 10 of them were under the soke of the Abbey of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and half a virgate and were the men of Earl Ælfgar[227]. What has become of these fifteen sokemen? They are now represented by fifteen bordiers and five cottiers; and the demesne land of the manor is a new thing. The sokemen have fallen, and their fall has brought with it the consolidation of manorial husbandry and seignorial power. At Orwell Earl Roger has now a small estate; a third of it is in demesne, while the residue is held by 2 villeins and 3 bordiers, and there is a serf there. This land had belonged to six sokemen, and those six had been under no less than five different lords; two belonged to Edith the Fair, one to Archbishop Stigand, one to Robert Wimarc’s son, one to the king, and one to Earl Ælfgar[228]. Displacements such as this we may see in village after village. No one can read the survey of Cambridgeshire without seeing that the freer sorts of the peasantry have been thrust out, or rather thrust down.

Further illustrations of depression.

Evidence so cogent as this we shall hardly find in any part of the record save that which relates to Cambridgeshire and Bedfordshire. But great movements of the kind that we are examining will hardly confine themselves within the boundaries of a county. A little variation in the formula which tells us who held the land in 1066 may hide from us the true state of the case. We can not expect that men will be very accurate in stating the legal relationships that existed twenty years ago. Since the day when King Edward was alive and dead many things have happened, many new words and new forms of thought have become familiar. But taking the verdicts as we find them, there is still no lack of evidence. In Essex we may see the liberi homines disappearing[229]. But we need not look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has a manor of 32 hides, 4 of which had belonged to ‘free men’ who could go where they pleased, but now there are only villeins, cottiers, and serfs[230]. We turn the page and find Odo holding 10 hides which had belonged to ‘the alodiaries of the vill[231].’ In Kent Hugh de Port is holding land that was held by 6 free men who could go whither they would; there are now 6 villeins and 14 bordiers there, with one team between them[232]. Students of Domesday were too apt to treat the antecessores of the Norman lords as being in all cases lords of manors. Lords of manors, or rather holders of manors, they often were, but as we shall see more fully hereafter, when we are examining the term manerium, such phrases are likely to deceive us. Often enough they were very small people with very little land. For example these six free men whom Hugh de Port represents had only two and a half team-lands. We pass by a few pages and find Hugh de Montfort with a holding which comprises but one team-land and a half; he has 4 villeins and 2 bordiers there. His antecessores were three free men, who could go whither they would[233]. They had need for but 12 oxen; they had no more land than they could easily till, at all events with the help of two or three cottagers or slaves. To all appearance they were no better than peasants. They or their sons may still be tilling the land as Hugh’s villeins. When we look for such instances we very easily find them. The case is not altered by the fact that the term ‘manor’ is given to the holdings of these antecessores. In Sussex an under-tenant of Earl Roger has an estate with four villeins upon it. His antecessores were two free men who held the land as two manors. And how much land was there to be divided between the two? There was one team-land. Such holders of maneria were tillers of the soil, peasants, at best yeomen[234]. If they were of thegnly rank, this again does not alter the case. When in the survey of Dorset we read how four thegns held two team-lands, how six thegns held two team-lands, eight thegns two team-lands, nine thegns four team-lands, eleven thegns four team-lands[235], we can not of course be certain that each of these groups of co-tenants had but one holding; but thegnly rank is inherited, and if a thegn will have nine or ten sons there will soon be tillers of the soil with the wergild of twelve hundred shillings. Now if these things are being done in the middling strata of society, if the sokemen are being suppressed or depressed in Cambridgeshire, the alodiaries in Sussex, what is likely to be the fate of the poor? They will have to till their lord’s demesne graviter et miserabiliter. He can afford to dispense with serfs, for he has villeins.

The peasants on the royal demesne.

A last argument must be added. What we see in the thirteenth century of the ancient demesne of the crown[236] might lead us to expect that in Domesday Book ‘the manors of S^t. Edward’ would stand out in bold relief. Instead of a population mainly consisting of villeins shall we not find upon them large numbers of sokemen, the ancestors of the men who in after days will be protected by the little writ of right and the Monstraverunt? Nothing of the kind. The royal manor differs in no such mode as this from any other manor. If it lies in a county in which other manors have sokemen, then it may or may not have sokemen. If it lies in a county in which other manors have no sokemen, it will have none. Cambridgeshire is a county in which there are some, and have been many, sokemen; there is hardly a sokeman upon the ancient demesne. In after days the men of Chesterton, for example, will have all the peculiar rights attributed by lawyers to the sokemen of S^t. Edward. But S^t. Edward, if we trust Domesday Book, had never a sokeman there; he had two villeins and a number of bordiers and cottiers[237]. It seems fairly clear that from an early time, if not from the first days of the Conquest onwards, the king was the best of landlords. The tenants of those manors that were conceived as annexed to the crown, those tenants one and all, save the class of slaves which was disappearing, got a better, a more regular justice than that which the villeins of other lords could hope for. It was the king’s justice, and therefore—for the king’s public and private capacities were hardly to be distinguished—it was public justice, and so became formal justice, defined by writs, administered in the last resort by the highest court, the ablest lawyers. And so sokemen disappear from private manors. Some of them as tenants in free socage may maintain their position; many fall down into the class of tenants in villeinage. On the ancient demesne the sokemen multiply; they appear where Domesday knew them not; for those who are protected by royal justice can hardly (now that villeinage implies a precarious tenure) be called villeins, they must be ‘villein sokemen’ at the least. Whether or no we trust the tradition which ascribes to the Conqueror a law in favour of the tillers of the soil, we can hardly doubt that the villani and bordarii whom Domesday Book shows us on the royal manors are treated as having legal rights in their holdings. And if this be true of them, it should be true of their peers upon other manors. Yes, it should be true; the manorial courts that are arising should do impartial justice even between lord and villeins; but who is to make it true?

§ 4. The Sokemen.

The sochemanni and liberi homines.

Now of a large part of England we may say that all the occupiers of land who are not holding ‘manors[238]’ will belong to some of those classes of which we have already spoken. They will be villeins, bordiers, cottiers, ‘boors’ or serfs. Here and there we may find a few persons who are described as liberi homines. In some of the western counties, Gloucester, Worcester, Hereford, Shropshire, there are rachenistres or radmans; between the Ribble and the Mersey we may find a party of drengs. Still it is generally true that two of those five classes that seem to have been mentioned in King William’s writ[239], the sochemanni and the liberi homines, are largely represented only in certain counties. They are to be seen in Essex, yet more thickly in Suffolk and Norfolk. In Lincolnshire nearly half of the rural population consists of sokemen, though there is no class of persons described as liberi homines. There are some sokemen in Yorkshire, but they are not very numerous and there are hardly any liberi homines. We have seen how in Cambridgeshire and Bedfordshire the sokemen have fared ill; but still some are left there. Traces of them may be found in Hertford and Buckingham; they are thick in Leicester, Nottingham and Northampton; there are some in Derbyshire. There have been sokemen in Middlesex[240] and in Surrey[241]; but they have been suppressed; a few remain in Kent[242]; so we should be rash were we to find anything characteristically Scandinavian in the sokemen. Even in Suffolk they are suffering ill at the hands of their new masters[243], while in Cambridgeshire, Bedfordshire, Hertfordshire they have been suppressed or displaced.

Lord and man.

We have now to enter on a difficult task, a discussion of the relation which exists between these sochemanni and liberi homines on the one hand and their lord upon the other. The character of this relation varies from case to case. We may distinguish three different bonds by which a man may be bound to a lord, a personal bond, a tenurial bond, a jurisdictional or justiciary bond. But the language of Domesday Book is not very patient of this analysis. However in the second volume we very frequently come upon two ideas which are sharply contrasted with each other; the one is expressed by the term commendatio, the other by the term soca[244]. To these we must add the great vague term consuetudo, and we shall also have to consider the phrases which describe the various degrees of that freedom of ‘withdrawing himself with his land’ that a man may enjoy.

Bonds between lord and man.

In order that we may become familiar with the use made of these terms and phrases we will transcribe a few typical entries:

Two free men, of whom Ælfwin had not even the commendation[245].

Of these men Harold had not even the commendation[246].

Thus commendation seems put before us as the slightest bond that there can be between lord and man. Very often we are told that the lord had the commendation and nothing more[247]. Thus it is contrasted with the soke:—

His predecessor had only the commendation of this, and Harold had the soke[248].

Of these six free men St Benet had the soke, and of one of them the commendation[249].

And the commendation is contrasted with the ‘custom,’ the consuetudo, perhaps we might say the ‘service’:—

Of the said sokeman Ralph Peverel had a custom of 3 shillings a year, but in the Confessor’s time his ancestor had only the commendation[250].

R. Malet claims 18 free men, 3 of them by commendation, and the rest for all custom[251].

And the soke is contrasted with the consuetudo:—

To this manor belong 4 men for all custom, and other 4 for soke only[252].

In a given case all these bonds may be united:—

There are 7 sokemen who are the Saint’s men with sake and soke and all custom[253].

Over this man the Saint has sake and soke and commendation with all custom[254].

Then if the man ‘withdraws,’ or gives or sells his land, we often read of the soke ‘remaining’; we sometimes read of the commendation, the custom, the service ‘remaining.’

These free men could sell or give their land, but the commendation and the soke and sake would remain to St Edmund[255].

These men could sell their land, but the soke would remain to the Saint and the service (servitium), whoever might be the buyer[256].

They could give and sell their land, but the soke and the commendation and the service would remain to the Saint[257].

But after all, these distinctions are not maintained with rigour, for the soke is sometimes spoken of as though it were a species of consuetudo. We have a tangled skein in our hands.

Commendation.

The thread that looks as if it would be the easiest to unravel, is that which is styled ‘mere commendation.’ The same idea is expressed by other phrases—‘he committed himself to Bishop Herman for his defence[258]’—‘they submitted themselves with their land to the abbey for defence[259]’—‘he became the man of Goisfrid of his own free will[260]’—‘she put herself with her land in the hand of the queen[261].’ ‘Homage’ is not a common term in Domesday Book, but if, when speaking of the old time, it says, as it constantly does, that one person was the man of another, no doubt it is telling us of a relationship which had its origin in an oath and a symbolic ceremony[262]. ‘She put herself into the hands of the queen’—we should take these words to mean just what they say. An Anglo-Saxon oath of fealty (hyldáð) has been preserved[263]. The swearer promises to be faithful and true to his lord, to love all that his lord loves and eschew all that his lord eschews. He makes no distinct reference to any land, but he refers to some compact which exists between him and his lord:—He will be faithful and true on condition that his lord treats him according to his deserts and according to the covenant that has been established between them.

Commendation and protection.

To all seeming there need not be any land in the case; and, if the man has land, the act of commendation will not give the lord as a matter of course any rights in that land. Certainly Domesday Book seems to assume that in general every owner or holder of land must have had a lord. This assumption is very worthy of notice. A law of Æthelstan[264] had said that lordless men ‘of whom no right could be had’ were to have lords, but this command seems aimed at the landless folk, not at those whose land is a sufficient surety for their good behaviour. The law had not directly commanded the landed men to commend themselves, but it had supplied them with motives for so doing[265]. What did a man gain by this act of submission? Of advantages that might be called ‘extra-legal’ we will say nothing, though in the wild days of Æthelred the Unready, and even during the Confessor’s reign, there was lawlessness enough to make the small proprietor wish that he had a mightier friend than the law could be. But there were distinct legal advantages to be had by commendation. In the first place, the life of the great man’s man was protected not only by a wer-gild, but by a man-bót:—a man-bót due to one who had the power to exact it; and if, as one of our authorities assures us, the amount of the man-bót varied with the rank of the lord[266], this would help to account for a remarkable fact disclosed by Domesday Book, namely, that the chosen lord was usually a person of the very highest rank, an earl, an archbishop, the king. Then, again, if the man got into a scrape, his lord might be of service to him. Suppose the man accused of theft: in certain cases he might escape with a single, instead of a triple ordeal, if he had a lord who would swear to his good character[267]. In yet other cases his lord would come forward as his compurgator; perhaps he was morally bound to do so; and, being a man of high rank, would swear a crushing oath. And within certain limits that we can not well define the lord might warrant the doings of his man, might take upon himself the task of defending an action to which his man was subjected[268]. What the man has sought by his submission is defensio, tuitio; the lord is his defensor, tutor, protector, advocatus, in a word, his warrantor[269].

Commendation and warranty.

Of warranty we are accustomed to think chiefly in connexion with the title to land:—the feoffor warrants the feoffee in his enjoyment of the tenement. But to all appearance in the eleventh century it is rather as lord than as giver, seller or lender, that the vouchee comes to the defence of his man. If the land is conceived as having once been the warrantor’s land, this may be but a fiction:—the man has given up his land and then taken it again merely in order that he may be able to say with some truth that he has it by his lord’s gift. But we can not be sure that as yet any such fiction is necessary. ‘I will defend any action that is brought against you for this land’:—as yet men see no reason why such a promise as this, if made with due ceremony, should not be enforced. A certain amount of ‘maintenance’ is desirable in their eyes and laudable.

Commendation and tenure.

Though we began with the statement that where there is commendation there may yet be no land in the case, we have none the less been already led to the supposition that often enough land does get involved in this nexus between man and lord. No doubt a landless man may commend himself and get no land in return for his homage; but with such an one Domesday Book is not concerned. The cases in which it takes an interest are those in which a landholder has commended himself. Now we dare not say that a landholder can never commend himself without commending his land also[270]. Howbeit, the usual practice certainly is that a man who submits or commits himself for ‘defence’ or ‘protection’ shall take his land with him; he ‘goes with his land’ to a lord. Very curious are some of the instances which show how large a liberty men have enjoyed of taking land wherever they please. ‘Tostig bought this land from the church of Malmesbury for three lives’:—in this there is nothing strange; leases for three lives granted by churches to thegns have been common. But of course we should assume that during the lease the land could have no other lord than the church of Malmesbury. Not so, however, for during his lease Tostig ‘could go with that land to whatever lord he pleased[271].’ In Essex there was before the Conquest a man who held land; that land in some sort belonged to the Abbey of Barking, and could not be separated from the abbey; but the holder of it was the man (‘merely the man’ say the jurors) of one Leofhild the predecessor of Geoffrey de Mandeville[272]. In this last case we may satisfy ourselves by saying that a purely personal relation is distinguished from a tenurial relation; the man of Leofhild is the tenant of the abbey. But what of Tostig’s case? Land that he holds of the church of Malmesbury, and that too by no perpetual tenure, he can commend to another lord. From the man’s point of view, protection, defence, warranty, is the essence of commendation, and the warranty that he chiefly needs is the warranty of his possession, of the title by which he holds his land. It can not but be therefore that the lord to whom he commends himself and his land, should be in some sort his landlord.

The lord’s interest in commendation.

Not that he need pay rent, or perform other services in return for the land. The land is his land; he has not obtained it from his lord; on the contrary he has carried it to his lord. Mere commendation is therefore distinguished by a score of entries from a relation that involves the payment of consuetudines. Doubtless however the lord obtains ‘a valuable consideration’ for all that he gives. Part of this will probably lie without the legal sphere. He has a sworn retainer who will fight whenever he is told to fight. But even the law allows the man to go great lengths in his lord’s defence[273]. In a rough age happy is the lord who has many sworn to defend him. When at a later time we see that the claimant of land must offer proof ‘by the body of a certain free man of his,’ we are taught that the lords have relied upon the testimony and the strong right arms of their vassals. That in all cases the lord got more than this we can not say, though perhaps commendation carried with it the right to the heriot, the horse and armour of the dead man[274]. The relation is often put before us as temporary. Numerous are the persons who ‘can seek lords where they choose’ or who can ‘go with their land wherever they please.’ How large a liberty these phrases accord to lord and man it were hard to tell. We can not believe that either party to the contract could dissolve it just at the moment when the other had some need to enforce it; but still at other times the man might dissolve it, and we may suppose that the lord could do so too. But the connexion might be of a more permanent kind. Perhaps in most cases in which we are told that a man can not withdraw his land from his lord the bond between them is regarded as something other than commendation—there is commendation and something more. But this is no universal truth. You might be the lord’s man ‘merely by commendation’ and yet be unable to sell your land without the lord’s leave[275]. At any rate, in one way and another ‘the commendation’ is considered as capable of binding the land. The commended man will be spoken of as holding the land under (sub) his lord, if not of (de) his lord[276]. In many cases if he sells the land ‘the commendation will remain to his lord’—by which is meant, not that the vendor will continue to be the man of that lord (for the purposes of the Domesday Inquest this would be a matter of indifference) but that the lord’s rights over the land are not destroyed. The purchaser comes to the land and finds the commendation inhering in it[277].

The seignory over the commended.

And so, again, the lord’s rights under the commendation seem to constitute an alienable and heritable seignory. It is thus that we may best explain the case, very common in East Anglia, in which a man is commended half to one and half to another lord[278]. Thus we read of a case in which a free man was commended, as to one-third to Wulfsige, and as to the residue to Wulfsige’s two brothers[279]. In this instance it seems clear that the commendation has descended to three co-heirs. In other cases a lord may have made over his rights to two religious houses; thus we hear of a man who is common to the Abbots of Ely and S^t. Edmund’s[280]. In some cases a man may, in others he may not, be able to prevent himself being transferred from lord to lord, or from ancestor to heir. What passes by alienation or inheritance may be regarded rather as a right to his commendation than as the commendation itself[281]. Of course there is nothing to hinder one from being the man of several different lords. Ælfric Black held lands of the Abbot of Westminster which he could not separate from the church, but for other lands he was the man of Archbishop Stigand[282]. Already a lofty edifice is being constructed; B, to whom C is commended, is himself commended to A; and in this case a certain relation exists between C and A; C is ‘sub-commended’ to A[283].

Commendation and service.

In a given case the somewhat vague obligation of the commended man may be rendered definite by a bargain which imposes upon him the payment of rent or the performance of some specified services. When this is so, we shall often find that the land is moving, if we may so speak, not from the man but from the lord. The man is taking land from the lord to hold during good behaviour[284], or for life[285], or for lives. A form of lease or loan (lǽn) which gives the land to the lessee and to two or three successive heirs of his, has from of old been commonly used by some of the great churches[286]. Also we see landowners giving up their land to the churches and taking it back again as mere life tenants. During their lives the church is to have some ‘service,’ or at least some ‘recognition’ of its lordship, while after their deaths the church will have the land in demesne[287]. This is something different from mere commendation. We see here the feuda oblata or beneficia oblata which foreign jurists have contrasted with feuda or beneficia data. The land is brought into the bargain by the man, not by the lord. But often the land comes from the lord, and the tenancy is no merely temporary tenancy; it is heritable. The king has provided his thegns with lands; the earls, the churches have provided their thegns with lands, and these thegns have heritable estates, and already they are conceived as holding them of (de) the churches, the earls, the king. But we must not as yet be led away into any discussion about the architecture of the very highest storeys of the feudal or vassalic edifice. It must at present suffice that in humbler quarters there has been much letting and hiring of land. The leases, if we choose to call them so, the gifts, if we choose to call them so, have created heritable rights and perdurable relationships.

Land-loans and services.

There is no kind of service that can not be purchased by a grant or lease of land. Godric’s wife had land from the king because she fed his dogs[288]. Ælfgyfu the maiden had land from Godric the sheriff that she might teach his daughter orfrey work[289]. The monks of Pershore stipulate that their dominion shall be recognized by ‘a day’s farm’ in every year, that is, that the lessee shall once a year furnish the convent with a day’s victual[290]. The king’s thegns between the Ribble and the Mersey have ‘like villeins’ to make lodges for the king, and fisheries and deer-hays, and must send their reapers to cut the king’s crops at harvest time[291]. The radmen and radknights of the west must ride on their lord’s errands and make themselves generally useful; they plough and harrow and mow, and do whatever is commanded them[292].

The man’s consuetudines.

But we would here speak chiefly of the lowly ‘free men’ and sokemen of the eastern counties. Besides having their commendation and their soke, the lord very often has what is known as their consuetudo or their consuetudines. Often they are the lord’s men de omni consuetudine. In all probability the word when thus employed, when contrasted with commendation on the one hand and with soke on the other, points to payments and renders to be made in money and in kind and to services of an agricultural character. Of such services only one stands out prominently; it is very frequently mentioned in the survey of East Anglia; it is fold-soke, soca faldae. The man must not have a fold of his own; his sheep must lie in the lord’s fold. It is manure that the lord wants; the demand for manure has played a large part in the history of the human race. Often enough this is the one consuetudo, the one definite service, that the lord gets out of his free men[293]. And then a man who is consuetus ad faldam, tied to his lord’s fold, is hardly to be considered as being in all respects a ‘free’ man. Those who are not ‘fold-worthy’ are to be classed with those who are not ‘moot-worthy’ or ‘fyrd-worthy.’ We are tempted to say that a man’s caput is diminished by his having to seek his lord’s fold, just as it would be diminished if he were excluded from the communal courts or the national host[294]. From the nature of this one consuetudo and from the prominence that is given to it, we may guess the character of the other consuetudines. Suit to the lord’s mill would be analogous to suit to his fold[295]. Of ‘mill-soke’ we read nothing, but often enough a surprisingly large part of the total value of a manor is ascribed to its mill, and we may argue that the lord has not invested capital in a costly undertaking without making sure of a return. We may well suppose that like the radmen of the west the free men and sokemen of the east give their lord some help in his husbandry at harvest time. From a document which comes to us from the abbey of Ely, and which is slightly older than the Domesday Inquest, we learn that certain of S^t. Etheldreda’s sokemen in Suffolk had nothing to do but to plough and thresh whenever the abbot required this of them; others had to plough and weed and reap, to carry the victual of the monks to the minster and furnish horses whenever called upon to do so[296]. This seems to point rather to ‘boon-days’ than to continuous ‘week-work,’ and we observe that the sokemen of the east like the radmen of the west have horses. Occasionally we learn that a sokeman has to pay an annual sum of money to his lord; sometimes this looks like a substantial rent, sometimes like a mere ‘recognition’; but the words that most nearly translate our ‘rent,’ redditus, census, gablum are seldom used in this context. All is consuetudo

Nature of consuetudines.

It is an interesting word. We perhaps are eager to urge the dilemma that in these cases the land must have been brought into the bargain either by the lord or by the tenant:—either the lord is conceived as having let land to the tenant, or the theory is that the tenant has commended land to the lord. But the dilemma is not perfect. It may well be that this relationship is thought of as having existed from all time; it may well be that this relationship, though under slowly varying forms, has really existed for several centuries, and has had its beginning in no contract, in no bargain. In origin the rights of the lord may be the rights of kings and ealdormen, rights over subjects rather than rights over tenants. The word consuetudo covers taxes as well as rents, and, if the sokeman has to do work for his lord, very often, especially in Cambridgeshire and Hertfordshire, he has to do work for the king or for the sheriff also. If he has to do carrying service for the lord, he has to do carrying service (avera) for the sheriff also or in lieu thereof to pay a small sum of money[297]. And another aspect of this word consuetudo is interesting to us. Land that is burdened with customs is customary land (terra consuetudinaria)[298]. As yet this term does not imply that the tenure, though protected by custom, is not protected by law; there is no opposition between law and custom; the customary tenant of Domesday Book is the tenant who renders customs, and the more customs he renders the more customary he is[299].

Justiciary consuetudines.

This word consuetudo is the widest of words. Perhaps we find the best equivalent for consuetudines in our own vague ‘dues[300].’ It covers what we should call rents; it covers what we should call rates and taxes; but further it covers what we should call the proceeds and profits of justice. Let us construe a few entries. At Romney there are burgesses who in return for the service that they do on the sea are quit of all customs except three, namely, larceny, peace-breach and ambush[301]. In Berkshire King Edward gave to one of his foresters half a hide of land free from all custom, except the king’s forfeiture, such as larceny, homicide, hám-fare and peace-breach[302]. In what sense can a crime be a custom? In a fiscal sense. A crime is a source of revenue. In what sense should we wish to have our land free of crimes, free even, if this be possible, of larceny and homicide? In this sense:—we should wish that no money whatever should go out of our land, neither by way of rent, nor by way of tax, rate, toll, nor yet again by way of forisfactura, of payment for crime committed. We should wish also that our land with the tenants on it should be quit or quiet (quieta) from the incursions of royal and national officers, whether they be in search of taxes or in search of criminals and the fines due from criminals, and we should also like to put those fines in our own pockets. Justice therefore takes its place among the consuetudines: ‘larceny’ is a source of income. A lord who has ‘his customs,’ is a lord who has among other sources of revenue, justice or the profits of justice[303]. ‘Justice or the profits of justice,’ we say, for our record does not care to distinguish between them. It is thinking of money while we are engaged in questioning it about the constitution and competence of tribunals. It gives us but crooked answers. However, we must make the best that can be made of them, and in particular must form some opinion about the consuetudines known as sake and soke.

§ 5. Sake and soke.

Sake and soke.

We may best begin our investigation by recalling the law of later times. In the thirteenth century seignorial justice, that is, justice in private hands, has two roots. A certain civil jurisdiction belongs to the lord as such; if he has tenants enough to form a court, he is at liberty to hold a court of and for his tenants. This kind of seignorial justice we call specifically feudal justice. But very often a lord has other and greater powers than the feudal principle would give him; in particular he has the view of frankpledge and the police justice that the view of frankpledge implies. All such powers must in theory have their origin in grants made by the king; they are franchises. With feudal justice therefore we contrast ‘franchisal’ justice[304].

Private jurisdiction in the Leges.

Now if we go back to the Norman period we shall begin to doubt whether the feudal principle—the principle which as a matter of course gives the lord justiciary powers over his tenants—is of very ancient origin[305]. The state of things that then existed should be revealed to us by theLeges Henrici; for, if that book has any plan at all, it is a treatise on the law of jurisdiction, a treatise on ‘soke.’ To this topic the writer constantly returns after many digressions, and the leading theme of his work is found in the following sentence:—‘As to the soke of pleas, there is that which belongs properly and exclusively to the royal fiscus; there is that which it participates with others; there is that which belongs to the sheriffs and royal bailiffs as comprised in their ferms; there is that which belongs to the barons who have soke and sake[306].’ But, when all has been said, the picture that is left on our minds is that of a confused conflict between inconsistent and indefinite principles, and very possibly the compiler in giving us such a picture is fulfilling the duty of a faithful portrayer of facts, though he does not satisfy our demand for a rational theory.

Soke in the Leges Henrici.

On the one hand, it seems plain that there is a seignorial justice which is not ‘franchisal.’ Certain persons have a certain ‘soke’ apart from any regalities which may have been expressly conceded to them by the king. But it is not clear that the legal basis of this soke is the simple feudal principle stated above, namely, that jurisdiction springs from the mere fact of tenure. An element of which we hear little in later days, is prominent in the Leges, the element of rank or personal status. ‘The archbishops, bishops, earls and other ‘powers’ (potestates) have sake and soke, toll, team and infangenethef in their own lands[307].’ Here the principle seems to be that men of a certain rank have certain jurisdictional powers, and the vague term potestates may include in this class all the king’s barons. But then the freeholding vavassores have a certain jurisdiction, they have the pleas which concern wer and wíte (that is to say ‘emendable’ pleas) over their own men and their own property, and sometimes over another man’s men who have been arrested or attached in the act of trespass[308]. Whatever else we may think of these vavassores, they are not barons and probably they are not immediate tenants of the king[309]. It is clear, however, that there may be a ‘lord’ with ‘men’ who yet has no sake or soke over them[310]. We are told indeed that every lord may summon his man to stand to right in his court, and that if the man be resident in the remotest manor of the honour of which he holds, he still must go to the plea[311]. Here for a moment we seem to have a fairly clear announcement of what we call the simple feudal principle, unadulterated by any element of personal rank; still our text supposes that the lord in question is a great man, he has no mere manor but an honour or several honours. On the whole, our law seems for the time to be taking the shape that French law took. If we leave out of sight the definitely granted franchisal powers, then we may say that a baron or the holder of a grand fief has ‘high justice,’ or if that term be too technical, a higher justice, while the vavassor has ‘low justice’ or a lower justice. But in this province, as in other provinces, of English law personal rank becomes of less and less importance. The rules which would determine it and its consequences are never allowed to become definite, and in the end a great generalization surmounts all difficulties:—every lord has a certain civil justice over his tenants; whatsoever powers go beyond this, are franchises.

Kinds of soke in the Leges.

As to the sort of jurisdiction that a lord of our Leges has, we can make no statement in general terms. Such categories as ‘civil’ and ‘criminal’ are too modern for use. We must of course except the pleas of the crown, of which a long and ungeneralized list is set before us[312]. We must except the pleas of the church. We must except certain pleas which belong in part to the king and in part to the church[313]. Then we observe that the justice of an archbishop, bishop or earl, probably the justice of a baron also, extends as high as infangenethef, while that of a vavassor goes no higher than such offences as are emendable. The whole matter however is complicated by royal grants. The king may grant away a demesne manor and retain not only ‘the exclusive soke’ (i.e. the soke over the pleas of the crown), but also ‘the common soke’ in his hand[314], and a great man may by purchase acquire soke (for example, we may suppose, the hundredal soke) over lands that are not his own[315]. Then again, we may suspect that what is said of ‘soke’ in general does not apply to any jurisdiction that a lord may exercise over his servi and villani. As to the servi, very possibly the lord’s right over them is still conceived as proprietary rather than jurisdictional, while for his villani (serf and villein are not yet convertible terms) the lord, whatever his rank may be, will probably hold a ‘hallmoot[316]’ and exercise that ‘common soke’ which does not infringe the royal preserves. On the whole, the law of the thirteenth century seems to evolve itself somewhat easily out of the law of these Leges, the process of development being threefold: (1) the lord’s rank as bishop, abbot, earl, baron, becomes unimportant; (2) the element of tenure becomes all-important; the mere fact that the man holds land of the lord makes him the lord’s justiciable; thus a generalization becomes possible which permits even so lowly a person as a burgess of Dunstable to hold a court for his tenants[317]; (3) the obsolescence of the old law of wíte and wer, the growth of the new law of felony, the emergence in Glanvill’s book of the distinction between criminal and civil pleas as a grand primary distinction, the introduction of the specially royal processes of presentment and inquest, bring about a new apportionment of the field of justice and a rational demarcation of feudal from franchisal powers. Still when we see the lords, especially the prelates of the church, relying upon prescription for their choicest franchises[318], we may learn (if such a lesson be needed) that new theories could not master all the ancient facts.

The Norman kings and private jurisdiction.

Whether the Conqueror or either of his sons would have admitted that any justice could be done in England that was not his justice, we may fairly doubt. They issued numerous charters which had no other object than that of giving or confirming to the donees ‘their sake and soke,’ and, so far as we can see, there is no jurisdiction, at least none over free men, that is not accounted to be ‘sake and soke.’ Occasionally it is said that the donees are to have ‘their court.’ However far the feudalization of justice had gone either in Normandy or in England before the Conquest, the Conquest itself was likely to conceal from view the question whether or no all seignorial jurisdiction is delegated from above; for thenceforward every lay tenant in chief, as no mere matter of theory, but as a plain matter of fact, held his land by a title derived newly and immediately from the king. Thus it would be easy for the king to maintain that, if the lords exercised jurisdictional powers, they did so by virtue of his grant, an expressed grant or an implied grant. Gradually the process of subinfeudation would make the theoretical question prominent and pressing, for certainly the Norman nobles conceived that, even if their justice was delegated to them by the king, no rule of law prevented them from appointing sub-delegates. If they claimed to give away land, they claimed also to give away justice, and no earnest effort can have been made to prevent their doing this[319].

Sake and soke in Domesday Book.

Returning from this brief digression, we must consider sake and soke as they are in Domesday Book. For a moment we will attend to the words themselves[320]. Of the two soke is by far the commoner; indeed we hardly ever find sake except in connexion with soke, and when we do, it seems just an equivalent for soke. We have but an alliterative jingle like ‘judgment and justice[321].’ Apparently it matters little or nothing whether we say of a lord that he has soke, or that he has sake, or that he has soke and sake. But not only is soke the commoner, it is also the wider word; we can not substitute sake for it in all contexts. Thus, for example, we say that a man renders soke to his lord or to his lord’s manor; also we say that a piece of land is a soke of such and such a manor; no similar use is made of sake.

Meaning of sake.

Now as a matter of etymology sake seems the easier of the two words. It is the Anglo-Saxon sacu, the German Sache, a thing, a matter, and hence a ‘matter’ or ‘cause’ in the lawyer’s sense of these terms, a ‘matter’ in dispute between litigants, a ‘cause’ before the court. It is still in use among us, for though we do not speak of a sake between two persons, we do speak of a man acting for another’s sake, or for God’s sake, or for the sake of money[322]. In Latin therefore sake may be rendered by placitum:—‘Roger has sake over them’ will become ‘Rogerius habet placita super eos[323]’; Roger has the right to hold plea over them. Thus easily enough sake becomes the right to have a court and to do justice.

Meaning of soke.

As to soke, this has a very similar signification, but the route by which it attains that signification is somewhat doubtful. We must start with this that soke, socna, soca, is the Anglo-Saxon sócn and has for its primary meaning a seeking. It may become connected with justice or jurisdiction by one or by both of two ways. One of these is explained by a passage in theLeges Henrici which says that the king has certain causes or pleas ‘in socna i.e. quaestione sua.’ The king has certain pleas within his investigation, or his right to investigate. A later phrase may help us:—the king is entitled to ‘inquire of, hear and determine’ these matters[324]. But the word might journey along another path which would lead to much the same end. It means seeking, following, suing, making suit, sequi, sectam facere. The duty known as soca faldae is the duty of seeking the lord’s fold. Thus soca may be the duty of seeking or suing at the lord’s court and the correlative right of the lord to keep a court and exact suit. Without denying that the word has traversed the first of the two routes, the route by way of ‘investigation’—in the face of theLeges Henrici we can hardly deny this—we may confidently assert that it has traversed the second, the route by way of ‘suit.’ There are several passages which assure us that soke is a genus of which fold-soke is a species. Thus:—‘Of these men Peter’s predecessor had fold-soke and commendation and Stigand had the other soke[325].’ In a document which is very closely connected with the great survey we find what seems to be a Latin translation of our word. The churches of Worcester and Evesham were quarrelling about certain lands at Hamton. Under the eye of the king’s commissioners they came to a compromise, which declared that the fifteen hides at Hamton belonged to the bishop of Worcester’s hundred of Oswaldslaw and ought to pay the king’s geld and perform the king’s services along with the bishop and ought ‘to seek the said hundred for pleading’:—requirere ad placitandum, this is the main kind of ‘seeking’ that soke implies[326]. If we look back far enough in the Anglo-Saxon dooms, there is indeed much to make us think that the act of seeking a lord and placing oneself under his protection, and the consequences of that act, the relation between man and lord, the fealty promised by the one, the warranty due from the other, have been known as sócn[327]. If so, then there may have been a time when commendation and soke were all one. But this time must be already ancient, for although we do not know what English word was represented by commendatio, still there is no distinction more emphatically drawn by Domesday Book than that between commendatio and soca.

Soke as jurisdiction.

Now when we meet with soca in the Leges Henrici we naturally construe it by some such terms as ‘jurisdiction,’ ‘justice,’ ‘the right to hold a court.’ We have seen that the author of that treatise renders it by the Latin quaestio. We also meet the following phrases which seem clear enough:—‘Every cause shall be determined in the hundred, or in the county, or in the hallmoot of those who have soke, or in the courts of the lords[328]’; ‘... according to the soke of pleas, which some have in their own land over their own men, some over their own men and strangers, either in all causes or in some causes[329]’: ... ‘grithbrice or hámsócn or any of those matters which exceed their soke and sake[330]’: ‘in capital causes the soke is the king’s[331].’ So again our author explains that though a baron has soke this will not give him a right to justice over himself; no one, he says, can have his own forfeiture; no one has a soke of impunity:—‘nullus enim socnam habet impune peccandi[332].’ The use that Domesday Book makes of the word may not be quite so clear. Sometimes we are inclined to render it by suit, in particular when fold-soke is contrasted with ‘other soke.’ But very generally we must construe it by justice or by justiciary rights, though we must be careful not to introduce the seignorial court where it does not exist, and to remember that a lord may be entitled to receive the wites or fines incurred by his criminous men without holding a court for them. Those men may be tried and condemned in a hundred court, but the wite will be paid to their lord. Then the word is applied to tracts of land. A tract over which a lord has justiciary power, or a wite-exacting power, is his soke, and very often his soke is contrasted with those other lands over which he has rights of a more definitely proprietary kind. But we must turn from words to law.

Seignorial justice before the Conquest.

Already before the Conquest there was plenty of seignorial justice in England. The greatest of the Anglo-Saxon lords had enjoyed wide and high justiciary rights. Naturally it is of the rights of the churches that we hear most, for the rights that they had under King Edward they still claim under King William. Foremost among them we may notice the church of Canterbury. On the great day at Penenden Heath, Lanfranc proved that throughout the lands of his church in Kent the king had but three rights; all other justice was in the hands of the archbishop[333]. In Warwickshire the Archbishop of York has soke and sake, toll and team, church-scot and all other ‘forfeitures’ save those four which the king has throughout the whole realm[334]. These four forfeitures are probably the four reserved pleas of the crown that are mentioned in the laws of Cnut—mundbryce, hámsócn, forsteal and fyrdwíte[335]. But even these rights though usually reserved to the king may have been made over to the lord. In Yorkshire neither king nor earl has any ‘custom’ within the lands of S^t. Peter of York, S^t. John of Beverley, S^t. Wilfrid of Ripon, S^t. Cuthbert of Durham and the Holy Trinity. We are asked specially to note that in this region there are four royal highways, three by land and one by water where the king claims all forfeitures even when they run through the land of the archbishop or of the earl[336]. Within his immense manor of Taunton the Bishop of Winchester has pleas of the highest class, and three times a year without any summons his men must meet to hold them[337]. In Worcestershire seven of the twelve hundreds into which the county is divided are in the heads of four great churches; Worcester has three, Westminster two, Evesham one, Pershore one. Westminster holds its lands as freely as the king held them in his demesne; Pershore enjoys all the pleas of the free men; no sheriff can claim anything within the territory of S^t. Mary of Worcester, neither in any plea, nor in any other matter[338]. In East Anglia we frequently hear of the reserved pleas of the crown. In this Danish district they are accounted to be six in number; probably they are griðbrice, hámsócn, fihtwíte and fyrdwíte, outlaw’s-work and the receipt of outlaws[339]. Often we read how over the men of some lord the king and the earl have ‘the six forfeitures,’ or how ‘the soke of the six forfeitures’ lies in some royal manor[340]. But then there is a large tract in which these six forfeitures belong to S^t. Edmund; some other lord may have sake and soke in a given parcel of that tract, but the six forfeitures belong to S^t. Edmund; they are indeed ‘the six forfeitures of S^t. Edmund[341].’ Other arrangements were possible. We hear of men over whom S^t. Benet had three forfeitures[342]. The lawmen of Stamford had sake and soke within their houses and over their men, save geld, heriot, larceny and forfeitures exceeding 40 ores of silver[343]. Certain burgesses of Romney serve the king on the sea, and therefore they have their own forfeitures, save larceny, peace-breach and forsteal, and these belong, not to the king, but to the archbishop[344]. Sometimes King William will be careful to limit his confirmation of a lord’s sake and soke to the ‘emendable forfeitures,’ the offences which can be paid for with money[345].

Soke as a regality.

That in the Confessor’s day justiciary rights could only be claimed by virtue of royal grants, that they did not arise out of the mere relation between lord and man, lord and tenant, or lord and villein, seems to us fairly certain. In the first place, as already said, soke is frequently contrasted with commendation. In the second place, as we turn over the pages of our record, we shall see it remarked of some man, who held a manor in the days before the Conquest, that he had it with sake and soke, and the remark is made in such a context that thereby he is singled out from among his fellows[346]. Thus it is said of a little group of villeins and sokemen in Essex that ‘their lord had sake and soke[347].’ Not that we can argue that a lord has no soke unless it is expressly ascribed to him. The surveyors have no great interest in this matter. Sometimes such a phrase as ‘he held it freely’ seems to serve as an equivalent for ‘he held it with sake and soke[348].’ It is said of the Countess Judith, a lady of exalted rank, that she had a manse in Lincoln without sake and soke[349]. Then we are told that throughout the city of Canterbury the king had sake and soke except in the lands of the Holy Trinity (Christ Church), S^t. Augustin, Queen Edith, and three other lords[350]. We have a list of fifteen persons who had sake and soke in the two lathes of Sutton and Aylesford[351], a list of thirty-five persons who had sake and soke, toll and team in Lincolnshire (it includes the queen, a bishop, three abbots and two earls[352]), and a list of nineteen persons who had similar rights in the shires of Derby and Nottingham[353]. Such lists would have been pointless had any generalization been possible. Then in East Anglia it is common enough to find that the men who are reckoned to be the liberi homines of some lord are under the soke of another lord or render their soke to the king and the earl, that is to say, to the hundred court. Often enough it is said somewhat pointedly that the men over whom the king and the earl have soke are liberi homines, and this may for a moment suggest that the lord as a matter of course has soke over such of his men as are not ranked as ‘free men’; possibly it may suggest that freedom in this context implies subjection to a national as opposed to a seignorial tribunal[354]. But on the one hand a lord often enough has soke over those who are distinctively ‘free men[355],’ while on the other hand, as will be explained below, he has not the soke over his sokeman[356].

Soke over villeins.

But we must go further and say that the lord has not always the soke over his villeins. This is a matter of much importance. An entry relating to a manor in Suffolk seems to put it beyond doubt:—In the hundred and a half of Sanford Auti a thegn held Wenham in King Edward’s time for a manor and three carucates of land; there were then nine villani, four bordarii and one servus and there were two teams on the demesne; Auti had the soke over his demesne and the soke of the villeins was in Bercolt[357]. Now Bercolt, the modern Bergholt, was a royal manor, the seat of a great court, which had soke over many men in the neighbouring villages. To all seeming it was the court for the hundred, or ‘hundred-and-a-half,’ of Sanford[358]. Here then we seem to have villeins who are not under the soke of their lord but are the justiciables of the hundred court. In another case, also from Suffolk, it is said of the lord of a manor that he had soke ‘only over the demesne of his hall,’ and this seems to exclude from the scope of his justiciary rights the land held by thirty-two villeins and eight bordiers[359]. We may find the line drawn at various places. Not very unfrequently in East Anglia a lord has the soke over those men who are bound to his sheep-fold, while those who are ‘fold-worthy’ attend the hundred court[360]. In one case a curious and instructive distinction is taken:—‘In Farwell lay in King Edward’s day the sake and soke of all who had less than thirty acres, but of all who had thirty acres the soke and sake lay in the hundred[361].’ In this case the line seems to be drawn just below the virgater, no matter the legal class to which the virgater belongs. To our thinking it is plain enough that many a manerium of the Confessor’s day had no court of its own. As we shall see hereafter, the manors are often far too small to allow of our endowing each of them with a court. When of a Cheshire manor we hear that ‘this manor has its pleas in its lord’s hall’ we are being told of something that is exceptional[362]. In the thirteenth century no one would have made such a remark. In the eleventh the halimote or hall-moot looks like a novelty.

Private soke and hundredal soke.

Seignorial justice is as yet very closely connected with the general scheme of national justice. Frequently the lord who has justice has a hundred. We remember how seven of the twelve hundreds of Worcestershire are in the hands of four great churches[363]. S^t. Etheldreda of Ely has the soke of five and a half hundreds in Suffolk[364]. In Essex Swain had the half-hundred of Clavering, and the pleas thereof brought him in 25s. a year[365]. In Nottinghamshire the Bishop of Lincoln had all the customs of the king and the earl throughout the wapentake of Newark[366]. The monks of Battle Abbey claimed that the sake and soke of twenty-two hundreds and a half and all royal ‘forfeitures’ were annexed to their manor of Wye[367]. But further—and this deserves attention—when the hundredal jurisdiction was not in the hands of some other lord, it was conceived as belonging to the king. The sake and soke of a hundred or of several hundreds is described as ‘lying in,’ or being annexed to, some royal manor and it is farmed by the farmer of that manor. Oxfordshire gives us the best example of this. The soke of four and a half hundreds belongs to the royal manor of Bensington, that of two hundreds to Headington, that of two and a half to Kirtlington, that of three to Upton, that of three to Shipton, that of two to Bampton, that of two to Bloxham and Adderbury[368]. What we see here we may see elsewhere also[369]. If then King William gives the royal manor of Wye to his newly founded church of S^t. Martin in the Place of Battle, the monks will contend that they have obtained as an appurtenance the hundredal soke over a large part of the county of Kent[370].

Hundredal and manorial soke.